TUPE rules re contracts of employment
Discussion
Hi all,
Our office is demerging with our current group and merging with another at the end of Feb. Employment contracts are currently being negotiated for the transfer.
Just a quick query regarding TUPE rules - we're aware that terms can be no worse than existing terms, but are a little unsure of the following.
Our holiday entitlement is a basic entitlement of 20 days pa going up to 25 days at 4 years service and then 30 days at 8 years service.
All but 2 of us have achieved 8 years service, so they will all still be entitled to 30 days.
However, 2 of us have only been here 6 1/2 years and 5 1/2 years - would we be entitled to have the 30 days after 8 years service clause carried over?
Our boss is aware that for people already at 8 years, they have to honour the 30 days, but was unsure whether it applied to those of us who are yet to achieve 8 years service even though it is written in our contracts.
I've tried calling the local CAB but after 30 mins on hold in a queue, I though I'd try here instead.
Many thanks
Nicki
Our office is demerging with our current group and merging with another at the end of Feb. Employment contracts are currently being negotiated for the transfer.
Just a quick query regarding TUPE rules - we're aware that terms can be no worse than existing terms, but are a little unsure of the following.
Our holiday entitlement is a basic entitlement of 20 days pa going up to 25 days at 4 years service and then 30 days at 8 years service.
All but 2 of us have achieved 8 years service, so they will all still be entitled to 30 days.
However, 2 of us have only been here 6 1/2 years and 5 1/2 years - would we be entitled to have the 30 days after 8 years service clause carried over?
Our boss is aware that for people already at 8 years, they have to honour the 30 days, but was unsure whether it applied to those of us who are yet to achieve 8 years service even though it is written in our contracts.
I've tried calling the local CAB but after 30 mins on hold in a queue, I though I'd try here instead.
Many thanks
Nicki
If your existing contract states that it rises to 30 after eight years, then that would remain the case. It's liekly anyway that the management will want the new merged comapny terms to be consistent, so they might offer some incentive to change your terms in this respect anyway. <<Not-an-expert>> alert!
^^^ What he said.
IANAL
If the current contract entitles you to something then you retain that entitlement unless you agree a new contract without it. However, if it isn't in your contract but is just established practice with the old employer, you don't.
Also note that if they restate the terms of your employment with some changes in and you don't object to the changes, you could be deemed to have implicitly accepted those changes.
IANAL
If the current contract entitles you to something then you retain that entitlement unless you agree a new contract without it. However, if it isn't in your contract but is just established practice with the old employer, you don't.
Also note that if they restate the terms of your employment with some changes in and you don't object to the changes, you could be deemed to have implicitly accepted those changes.
Adding to the above, if your contract of employment states that your holiday entitlement will increase after 8 years of service, that will be transferred across to your new employer, as you say they cannot employ you on any worse terms.
The situation becomes more complex if there is not an express term in your contract of employment. You may find that the new employer does not wish to rock the boat for the sake of two employees and agree regardless.
The post above indicates that if there is not an express term, that is the end of the matter, and you definately won't get your extra days - I disagree.
I would suggest that you may be able to argue that there is an implied term of the contract that 8 years = 30 days holiday.
The general rule is that a term will be implied into a contract if it is so obvious that both parties would have regarded it as a term. A common business practice that 8 years service = 30 days holiday may be sufficient for this. This may be evidenced by the fact that X number of other employees have been awarded with extra holiday having achieved 8 years service.
I have to say this isn't the usual type of term which will be implied - common implied terms include such things as the employers duty not to destroy trust and confidence between the parties and the duty to take care of the safety of employees.
It would clearly be better for you if it is an express term, the point I make is that even if it is not, you can argue for the right to 30 days when you reach 8 years service.
The situation becomes more complex if there is not an express term in your contract of employment. You may find that the new employer does not wish to rock the boat for the sake of two employees and agree regardless.
The post above indicates that if there is not an express term, that is the end of the matter, and you definately won't get your extra days - I disagree.
I would suggest that you may be able to argue that there is an implied term of the contract that 8 years = 30 days holiday.
The general rule is that a term will be implied into a contract if it is so obvious that both parties would have regarded it as a term. A common business practice that 8 years service = 30 days holiday may be sufficient for this. This may be evidenced by the fact that X number of other employees have been awarded with extra holiday having achieved 8 years service.
I have to say this isn't the usual type of term which will be implied - common implied terms include such things as the employers duty not to destroy trust and confidence between the parties and the duty to take care of the safety of employees.
It would clearly be better for you if it is an express term, the point I make is that even if it is not, you can argue for the right to 30 days when you reach 8 years service.
Edited by soprano on Monday 25th February 21:43
Edited by soprano on Monday 25th February 21:56
Here's the exact wording from the contract:
"HOLIDAY ENTITLEMENT"
In addition to statutory and public holidays, the Employee will be entitled to 20 days paid holiday per annum. All Employees shall give notice of their intention and must receive consent to take such holidays in the form prescribed by the Employer; such consent should not be unduly withheld.
After four years' employment the Employee's holiday entitlement will increase from twenty to twenty five days per annum.
After eight years' employment the Employee's holiday entitlement will increase from twenty five to thirty days per annum."
It then goes on to talk about holiday rules & termination of employment and the period over which the holiday is to be taken.
"HOLIDAY ENTITLEMENT"
In addition to statutory and public holidays, the Employee will be entitled to 20 days paid holiday per annum. All Employees shall give notice of their intention and must receive consent to take such holidays in the form prescribed by the Employer; such consent should not be unduly withheld.
After four years' employment the Employee's holiday entitlement will increase from twenty to twenty five days per annum.
After eight years' employment the Employee's holiday entitlement will increase from twenty five to thirty days per annum."
It then goes on to talk about holiday rules & termination of employment and the period over which the holiday is to be taken.
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