TUPE employment law - pointer plz?

[Daggerpie]

Hi, does anything know much about TUPE law? (Transfer of undertakings),

Company i work for has recently been taken over i was told that basically my contract & terms would stay the same. Few months into my employment under the new employer I was have just been told that "yes" my salary will stay the same but TUPE doesnt cover my previous commision scheme as well. (which worked out anywhere between £500 - £1000.00 per month extra,depending on sales). I could come in line with the new companies commision structure but tbh its crap and leaves me well out of pocket!

Is this right, can they really do this? they are adamant that TUPE doesn't cover commision and will not honour it. (even tho its detailed in my salary & commision structure letter they would have received from my previous Director stating my previous terms) This was never mentioned once when the company was taken over otherwise I'd have told them to feck it.

Any pointer appreciated...cheers

[GreenV8S]

I'm not a lawyer, but my understanding of TUPE is that when it applies the new employer is deemed to have taken over responsibility for the contract with the old employer. The old employer would not be able to vary the terms of the contract without your agreement, and the new employer can't either. So if your contract of employment specifies the commission structure, the new employer is bound to provide the same structure.

[edc]

GreenV8S said:

I'm not a lawyer, but my understanding of TUPE is that when it applies the new employer is deemed to have taken over responsibility for the contract with the old employer. The old employer would not be able to vary the terms of the contract without your agreement, and the new employer can't either. So if your contract of employment specifies the commission structure, the new employer is bound to provide the same structure.

Similarly, if it says 'here is your commission structure ... it is subject to change etc' then it can be changed. Some companies don't provide a specific commission structure under the T&Cs. However, it is arguable that a specific structure, whilst not explicitly written in the T&Cs, and has been in place for a while, could be implied.

Furthermore, changes to T&Cs can be made given sufficient notice/consultation.

[Daggerpie]

Cheers, thanks for the advice gents, thats the whole point tho, the letter they received from pervious director clearly states my terms and reads:

"with effect from xxx your basic salary was increased to £xxx per annum and a monthly bonus also revised and now payable on the following sliding scale xxxxx"

This was clearly what i was expecting to get under the new company and not once has anyone mentioned to me that it would be otherwise, it was only until last week I was told that i have the option to come over to the new Co's commision scheme but they will not honour my previous.

In fact this is the actual corrospondence i had from the "new" company director just prior to transfer taking place:

"With regards your employment contract, when a deal such as this takes place under TUPE (transfer of undertakings, protection of employment), you automatically come across to xxxxx on your existing employment contract and terms. This is the law and a key part of TUPE.

Therefore, until the deal has been completed and you officially become an xxxx employee (only with your current terms and conditions), we cannot issue you with a new employment contract, which is why this has not been done yet.

This means that as far as your personal circumstances go nothing changes with regards your employment status or terms of employment from being employed by xxxxx and then by xxxxxx.
Once the deal has been completed we can then talk about whether you want to move to an xxxxxx contract with its additional benefits."

what do you make of that chaps, it clearly states whether I "WANT" to move to a new xxxxx contact? this thing is I DON'T as their commision scheme is crap compared to my old one....its almost like im being bullied into new one after they've got a few months worth out of me and I've set it all up on their system

Any further pointers very,very much appreciated...thanks

PS - (not that it makes much difference but..)had been with the previous company for years (since they started) and even set up and managed the whole dept from scratch, thats why im so p1$$ed off im being treating like an idiot!!

Edited by Daggerpie on Friday 20th March 10:14

[Daggerpie]

...anyone???

[sploosh]

Dunno about this specific, but you can't choose not to be TUPE'd.

Rejecting the TUPE offer is the same as handing in your resignation (i.e. no entitlement to redundancy etc.)

I was TUPE'd a year ago and just about to be TUPE'd again.

Don't work on commission so this didn't come up.

Hobson's choice probably.

[siscar]

They need to honour your existing contract or get your agreement to a new contract. Commission is a key part of your existing contract - the letter is evidence, presumably you also have evidence that it was paid in the past - so they can't take that away. All they can do is refuse you any additional benefits that would have come to you under the new contract.
So if your old contract gave 10% commission but 22 days holiday (for example) and the new contract gave 8% commission and 25 days holiday you can stick with the old or switch to the new but not pick the best out of each.