What are my rights under TUPE if pay and role change?

[TwittleBee]

This morning we were told our employer is being taken over by another company. I’m concerned that despite them stating we will be protected by TUPE, that not everything will be continued. For example, my commission will no longer be honoured which accounts for 25% of my wage, I’ll be essentially demoted too as they will be giving me a new job title which doesn’t align with my current one. In addition they have advised I’ll no longer be able to do the self employed work I do, so that’s also a loss.

We have 4 weeks until our company is formally transferred over but in the meantime they’ll be gutting our office and turning it into a hot desk arrangement and doubling the number of people in the office.

There are another suite of changes too.

Whilst I do understand nothing is guaranteed and these things happen etc, I am struggling! What are my rights here? I am also concerned because I am autistic with ADHD and the current company has been supportive (which has allowed me to be the highest fee generator within the business) but the new company have advised that they won’t be honouring these because it doesn’t align with their business model.

I am tempted to hand in my notice now, given it’s a 6 month period but then I won’t get this months’ commission.

has anyone any advice?

Didn't want to read and run, can't advise directly as my knowledge of TUPE arrangements is several years out of date but would definitely advise contacting ACAS x

If the role is changing does that mean your existing role is being made redundant?

Are there any redundancies happening as part of the takeover?

Are you and others having to interview for the new roles?

Do not hand in your notice. Take legal advice.

No interviews and no redundancies. It’s just how this new company structure works, my role doesn’t exist so they’re pushing me down.

My understanding of TUPE is years old but I thought they couldn’t change your contract in a way that disadvantages you. I’d definitely be seeking legal advice about the proposed changes and any new contract.

What you are outlining are two separate issues.

1. TUPE and there are clear laws governing this and your contractual terms and conditions that must be honoured
2. what sounds like some kind a restructuring.

are you in a union? If not go to ACAS and discuss your circumstances in detail.

From what OP says in 4 weeks the takeover will be completed legally but OP mentions 6 months also.

I'm wondering if the 6 months is the TUPE period after which OP moves to the new role?

I'm confused tbh.

They cannot simply stop your commission, change your job title or stop you from undertaking self-employed work unless they have either your agreement or a valid legal reason (known as an ETO reason - economic, technical or organisational). The bar for a change being a valid ETO reason is high. They cannot effectively demote you just because their structure is different, for example.

If you are in a union, contact them. If not, contact a lawyer who specialises in employment law. If you have legal cover on your home insurance, they should be able to help. It isn't entirely clear from your OP, but it sounds like the company taking over your employer doesn't understand TUPE (or hopes that employees don't understand it) and intends to trample all over your rights.

Having re-read your OP, it isn't entirely clear if TUPE applies. You say your employer is being taken over by another company. If they are buying all the shares in your employer (or the majority of the shares) and you will still be employed by the same company, TUPE does not apply. However, if your employment is transferring to a different company, TUPE applies.

Even if TUPE does not apply, you still have protection. They cannot unilaterally change your terms. If your commission is contractual, they cannot unilaterally withdraw it. Even if it is not contractual, they must pay out any commission that you have already earned. And, even if it is labelled as non-contractual, it may have become an implied term of your contract if it has been paid consistently over a long period.

Assuming TUPE does not apply, any changes to your terms of employment need your consent. If they make the changes without your consent and you continue working for them, that may be taken as implied consent unless you formally and regularly tell your employer that you do not accept the changes and are working under protest.

If they force the changes without your consent, that may give you a claim for constructive dismissal or breach of contract. If they dismiss you for refusing to accept the changes, that is likely to be an unfair dismissal.

As per my previous post, you need to contact your union if you have one, or an employment lawyer if you are not in a union.

TUPE does apply, whole company being transferred to new company. We will be known as “new company” form 1st Oct.

letter here states that under TUPE my contract carries over apart from the parts that are not compatible with their company.

technically the commission is not in my contract, I have a seperate commission agreement that outlines I take 10% cut of total department billings.

I am tempted to refuse to transfer and just set up solo.

If your commission agreement is outside of your employment contract then it isn’t covered by the TUPE transfer. What provision is in that agreement for cancellation?

This.

Are you sure it’s a TUPE and not just a share purchase?

Under TUPE the transferee can only
make changed connected with the transfer for an economic, technical or organisational reason entailing changes in the workforce.

letter here states that under TUPE my contract carries over apart from the parts that are not compatible with their company

pah haha! They could do with taking legal
advice themselves. You can’t pick or choose what applies under TUPE. If they can’t provide a specific benefit they need to provide one which is broadly comparable. Even if the commission agreement isn’t in your contract it may form part of your terms
and conditions of employment anyway. You should take employment law and also pensions advice as pensions transfer can be limited under TUPE

So if your job doesn’t exist then it could give them the ETO reason entailing changes in the workforce as that’s potentially a redundancy. Def get legal advice ASAP. This is probably beyond ACAS’s competence tbh

You need to take advice from ACAS or CAB . You have certain rights / protections under TUPE . I’m pretty sure they can’t pick and choose which parts of your contract they honour - get advice quickly & before you sign anything

Basically contractual rights are protected but policies and discretionary things may not be. You need to dig everything out and go through carefully.
Is there not a consultation process underway?

You're wasting your and others time on here. Speak to an employment lawyer fast. Worth the money.

letter here states that under TUPE my contract carries over apart from the parts that are not compatible with their company.

Rubbish. It all carries over. They can't pick and choose. As another poster says, if they can't provide a specific benefit they have to provide an equivalent. And the fact that your commission is in a separate document doesn't mean it is non-contractual. If they want to stop paying commission, they may have to give you a substantial pay rise given that you say it is 25% of your wages.

You need to contact a lawyer who specialises in employment law.

Lots of info here: https://www.gov.uk/transfers-takeovers/transfers-of-employment-contracts

OP, to add to @prh47bridge last post, people who were tupe’d to an outsourcing company where I worked ( both global companies ) had their DC type pension T&Cs continued by the outsourcer under the agreed TUPE agreement.

I ended up arranging a solicitor appointment for this week. What I’m not happy with is how quickly it’s all happening. I feel so pressured with it all. Is it normal for it to happen in one month?

expected to sign the new contract within the next fortnight
go through my clients and inform them of the change
hand over half the client list to the new comers coming in as part of that merger
all whilst there’s been some huge changes in our industry that have massive impacts on current workload that I’m trying to unpick (which would be manageable if it wasn’t that this national impact happened the same week we were told about this)

The timescale from announcing a reorganisation to it happening is not unusual. It is often even quicker than that.

You didn't mention a new contract previously. That is significant. They cannot change your contract without your agreement. If they dismiss you for refusing to agree, that is likely to be an unfair dismissal. And if your role is redundant, it does raise real questions about the way they have gone about this. Whilst they are not required to follow a fair process when restructuring, they are required to follow a fair process when selecting people for redundancy.

I suspect the one month is to be seen to be giving employees a consultation period.

With it being a short time frame especially with the signing of the contracts , both companies management realise they need you and your colleagues to make sure the takeover works. Despite roles like yours no longer existing in the new structure, you’ve not been put at risk of redundancy by the sounds of it, but offered a new lesser role. They’re gambling you’ll take it to keep the bills paid rather than resign.

Regarding the solicitor , apart from advising that you write down what’s happened with time lines and any emails from the company regarding their rules about this takeover as the solicitor might need time to consider them after the meeting. But if the solicitor comes back and says they’re contravening this or that employment law, have you thought about what you do then?

Please get legal advice if you possibly can. Check if this is covered by your home insurance policy or union membership etc. Or look for local charities to see if there are any which offer free legal advice on employment matters.

I am not an expert but my understanding of TUPE is that you should get to keep your existing terms and conditions, and that the new employer cannot just pick and choose. However, I'm not sure where you stand with regard to benefits/terms which are not contractual. If your new role is different from the old one, then that sounds more like a redundancy situation tbh, but there will be nuances that your new employer may be exploiting so getting specialist advice is probably your best option.

@MrsBennetsPoorNervesAreBack

OP said just this morning that they’ve arranged a solicitors appointment.