TUPE / On-Call Rates / Employer has changed payments
Discussion
I'm afraid this is all very boring and convoluted (to the point of being hard to write out) but I'd be really grateful for some input from others on this as I don't really have anyone to discuss it with currently.
Summary:
I started a role in 2003, my employer lost the contract to another company in 2007 (Company X) and I TUPE'd over to them. Then in 2016 the customer decided to award the contract to another company (Company Z) and, once again, I entered the TUPE process and moved to another employer who I'm still with now.
Throughout these periods I've covered on-call stand-by duties ranging from a night a week to being 24/7 on-call for months at a time but when I first started the role in 2003 there was no customer requirement for on-call so it wasn't in my contract from day one, it was an assumed service at rates agreed verbally and submitted on timesheets.
In June 2016 I was on-call for Company X
I TUPE'd to Company Z in July 2016 and was on-call with them from day 1 of this
In August 2016 my new manager asked me for confirmation of on-call rotas and rates, I provided these and was thanked, these rates were paid without question. Company Z paid me the exact same on-call rates as Company X for 2 years of on-call commitments that ended in May 2017 as I went to support other customers who didn't need on-call cover.
In July 2019, still as an employee of Company Z, I moved back to the account I had been on previously to try and sort out the mess my offshore replacements had made, I was asked to go back on-call as they'd had some issues out of hours and been unsatisfied with how they were handled.
I asked my (then) manager what my on-call rates would be and how the claims process operated at that time as some of the systems had been replaced, an answer was received stating the new process and:
"Rates are:
£x.xx per hour for weekdays and £x.xx per hour for weekends"
This was around a 20% increase on my old rates two years earlier so I was quite happy with this.
So I resumed on-call and after a couple of months the payments started to come in, lower than I had expected. I raised questions with payroll and over the space of a week managed to get enough of a breakdown to find out I'm being paid a flat rate for on-call that's 2/3 of the weekday rate and less than 1/2 of my expected weekend rate.
It also transpires that the rates my manager quoted me in July were the rate they charge the customer, not what I would get paid - they equate to the rates I'd received previously from companies X and Y with a 20% margin on top.
I've attempted to discuss this with my HR department and they are stating that the TUPE documentation they received from company X says "N/A" next to the rates for on-call. It does, I've obtained a copy and can see this.
However, post TUPE, company Y paid me (what I considered to be) the correct on-call rates that matched those of company X from 2016 to 2017 - this is despite the "N/A" on the documentation. I have time sheets from both companies with the rates printed on them.
HR now argue that the rate I was paid back in 2016 was incorrect and should have been the current basic flat rate they are now paying rather than accepting that a mistake has been made and that for some reason the document doesn't reflect the rates I should be receiving and was correctly paid originally. Had the lower rate been applied back at the start of all this I would have raised my concerns immediately.
As far as I'm aware the customer is still being charged the higher rate that was confirmed to me by my previous manager (I'm on my 5th this year) in July.
So to (finally) get to the point:
1. Do I have a leg to stand on here if the document from the TUPE process says "N/A" for on-call? (I saw this for the first time last week)
2. Does them paying one rate to begin within and then drastically reducing this later on the basis of this "N/A" seem right?
3. Years on if I asked my last employer to provide a statement to my current employer regarding my rates would this hold any water legally?
4. Should I fight this or am I in a bad position where I need to cut my losses and stop making myself angry / ill?
The bit I'm really struggling with is the robotic HR responses that lack any kind of empathy to the situation, it's all very binary and nobody is willing to try and help me to the point where I'm here asking strangers and wondering if I can seek any kind of help legally.
I'm currently a four-figure sum out of pocket compared to what I'd expected to receive so far for on-call standby and I;'m on the rota to cover most of Christmas and the New Year, at the rates being paid it's simply not worth it but it will leave my customer with no cover.
TL:DR - yeah, get everything in writing and check it, don't just assume anything on the basis everyone is as nice as you are
Summary:
I started a role in 2003, my employer lost the contract to another company in 2007 (Company X) and I TUPE'd over to them. Then in 2016 the customer decided to award the contract to another company (Company Z) and, once again, I entered the TUPE process and moved to another employer who I'm still with now.
Throughout these periods I've covered on-call stand-by duties ranging from a night a week to being 24/7 on-call for months at a time but when I first started the role in 2003 there was no customer requirement for on-call so it wasn't in my contract from day one, it was an assumed service at rates agreed verbally and submitted on timesheets.
In June 2016 I was on-call for Company X
I TUPE'd to Company Z in July 2016 and was on-call with them from day 1 of this
In August 2016 my new manager asked me for confirmation of on-call rotas and rates, I provided these and was thanked, these rates were paid without question. Company Z paid me the exact same on-call rates as Company X for 2 years of on-call commitments that ended in May 2017 as I went to support other customers who didn't need on-call cover.
In July 2019, still as an employee of Company Z, I moved back to the account I had been on previously to try and sort out the mess my offshore replacements had made, I was asked to go back on-call as they'd had some issues out of hours and been unsatisfied with how they were handled.
I asked my (then) manager what my on-call rates would be and how the claims process operated at that time as some of the systems had been replaced, an answer was received stating the new process and:
"Rates are:
£x.xx per hour for weekdays and £x.xx per hour for weekends"
This was around a 20% increase on my old rates two years earlier so I was quite happy with this.
So I resumed on-call and after a couple of months the payments started to come in, lower than I had expected. I raised questions with payroll and over the space of a week managed to get enough of a breakdown to find out I'm being paid a flat rate for on-call that's 2/3 of the weekday rate and less than 1/2 of my expected weekend rate.
It also transpires that the rates my manager quoted me in July were the rate they charge the customer, not what I would get paid - they equate to the rates I'd received previously from companies X and Y with a 20% margin on top.
I've attempted to discuss this with my HR department and they are stating that the TUPE documentation they received from company X says "N/A" next to the rates for on-call. It does, I've obtained a copy and can see this.
However, post TUPE, company Y paid me (what I considered to be) the correct on-call rates that matched those of company X from 2016 to 2017 - this is despite the "N/A" on the documentation. I have time sheets from both companies with the rates printed on them.
HR now argue that the rate I was paid back in 2016 was incorrect and should have been the current basic flat rate they are now paying rather than accepting that a mistake has been made and that for some reason the document doesn't reflect the rates I should be receiving and was correctly paid originally. Had the lower rate been applied back at the start of all this I would have raised my concerns immediately.
As far as I'm aware the customer is still being charged the higher rate that was confirmed to me by my previous manager (I'm on my 5th this year) in July.
So to (finally) get to the point:
1. Do I have a leg to stand on here if the document from the TUPE process says "N/A" for on-call? (I saw this for the first time last week)
2. Does them paying one rate to begin within and then drastically reducing this later on the basis of this "N/A" seem right?
3. Years on if I asked my last employer to provide a statement to my current employer regarding my rates would this hold any water legally?
4. Should I fight this or am I in a bad position where I need to cut my losses and stop making myself angry / ill?
The bit I'm really struggling with is the robotic HR responses that lack any kind of empathy to the situation, it's all very binary and nobody is willing to try and help me to the point where I'm here asking strangers and wondering if I can seek any kind of help legally.
I'm currently a four-figure sum out of pocket compared to what I'd expected to receive so far for on-call standby and I;'m on the rota to cover most of Christmas and the New Year, at the rates being paid it's simply not worth it but it will leave my customer with no cover.
TL:DR - yeah, get everything in writing and check it, don't just assume anything on the basis everyone is as nice as you are
Edited by thetapeworm on Tuesday 3rd December 12:27
randlemarcus said:
Surely you are in a reasonable position to robotically reply to HR stating that "thanks for the clarification. I will no longer be participating in the on call rota. thanks."
Hey, thanks for reading all that, I wasn't sure anyone would bother 
I can leave the on-call rota with immediate effect and there's nothing they can do (and it comes off the back of a 16 hour call out last weekend where I pretty much saved the world from a customer point of view).
There are two things I'm worried about though:
1. if I do this then is that a line drawn under it all and no chance of getting the money I believe is owed to me? A kind of "OK, you win, I'm out of here"?
2. The upcoming on-call is quite lucrative and I'd like to have it, just at the right rates.
You have almost no chance of getting the stated rates, if those given to you were the customer prices, going forwards or looking back.
You could always gamble that the customer raises hell when you vanish, and your lot see the light, and pay you what you want. That gamble might involve you finding a new job though.
You could always gamble that the customer raises hell when you vanish, and your lot see the light, and pay you what you want. That gamble might involve you finding a new job though.
randlemarcus said:
You have almost no chance of getting the stated rates, if those given to you were the customer prices, going forwards or looking back.
You could always gamble that the customer raises hell when you vanish, and your lot see the light, and pay you what you want. That gamble might involve you finding a new job though.
I don't want or expect the customer rates, the manager made a mistake in sending me those, I'm not going to start kicking off about it, sloppy on their part but it happens. You could always gamble that the customer raises hell when you vanish, and your lot see the light, and pay you what you want. That gamble might involve you finding a new job though.
All I'd like is the rates I had previously, i.e, the ones my currently employer paid me originally and the ones the customer is still being charged for.
Is there an enormous difference between the current and the previous rates? You have a reasonable chance of getting the account to be reasonable, even if HR are being robotic. What's your relationship with the account manager like? I suspect they may not know about the additional margin that work is getting 
randlemarcus said:
Is there an enormous difference between the current and the previous rates? You have a reasonable chance of getting the account to be reasonable, even if HR are being robotic. What's your relationship with the account manager like? I suspect they may not know about the additional margin that work is getting
In isolation it's not a hugely significant difference per hour, the weekday rate I should get is around 1.5 times more than their current offering and the weekend / bank holiday rate around 2.5 times higher. Over the space of a week, month etc it adds up obviously, especially as most of my on-call is 24 hour cover at weekends.My relationship with the account and in turn the account they then supply me to is good but I've resisted involving them in this to date as it feels unprofessional. If I manage to get nowhere with my current line manager and some supporting characters I'm currently trying to pull in then maybe I'll take that approach, if only out of spite.
MOBB said:
Blanchimont said:
Speak with your manager, and tell them you no longer wish to work on call at those rates. You will remain on call, for the rates you had previously. Copy HR in. But you have to be prepared to forfeit the oncall
This ^I had wondered about seeing if I could take them to court to try and recoup the difference but I keep coming back to the fact I have nothing contractual with the rates on, just a history of being paid them by two separate employers, lots of approved time sheets with the rates on and the knowledge that the customer is still being charged the higher rate. Is that a case worth fighting or is it all as binary as the HR people make it sound?
From your narrative, it appears arguable that you have a contractual entitlement arising from conduct to be paid the rates that you were paid before the most recent transfer of undertaking.
You could assert a contractual claim in an employment tribunal (subject to a statutory limit on the amount that the tribunal can award), but obviously negotiate before doing that..
You could assert a contractual claim in an employment tribunal (subject to a statutory limit on the amount that the tribunal can award), but obviously negotiate before doing that..
Well this continues to drag on and seeing J4CKOs on-call post pop up a few times reminded me I'd posted.
Following my last update I sent a message to my line manager to tell him that I was on vacation for a week and wanted some movement on this by the time I returned otherwise I'd withdraw from the on-call rota as the money being paid didn't make it worthwhile. I was scheduled to cover the whole Christmas and New Year period as nobody else was willing.
I returned, there wasn't even an acknowledgement of my message (other than a read receipt) so, as promised, I contacted the person in charge of the rota and asked to be removed from it. They managed to get some cover in place using off-shore resource but needed 4 people to cover me due to local employment laws on hours worked.
My manager then made contact to chastise me for removing myself from on-call and said I should have done this through him, He's a people manager with no relationship with my customer, doesn't know what I do and is essentially there to approve holidays and tick boxes, he wasn't needed and as he'd ignored me I presumed he wasn't interested.
Their argument for not paying me the right rates is that it's not in my contract to do on-call and wasn't highlighted in TUPE but I have historical time sheets and old letters stating I do on-call and as I think I mentioned initially my currently employer paid me correctly for on-call for nearly a year when I first joined them. However given they don't agree and don't think it's contractual me withdrawing should have been fine with them.
Subsequently one of the off-shore resources has also left the on-call rota and another is leaving the business so there is a gap in cover.
My customer "Y" (I'm employed by X, they provide me to Y and then then use me to service their customer Z) has now kicked off with my employer and said they are contractually obliged to provide on-call resources, they argue they aren't and there's nothing in the contract about this. However before Christmas they got in touch and asked "if we were to pay you 50% of what you expect (and have received previously) would you go back on the rota?" - I said no, it's all or nothing.
I then took the opportunity to raise a formal grievance over all of this with HR as it seems I need to do this before I can escalate externally for any kind of tribunal. A month on I'm still awaiting the initial meeting to discuss this with someone in the company.
"Y" are now pressuring me to go back on-call as they have no cover and that's making "Z" get annoyed with them. Apparently they are having something added to their contract with my employer.
In the meantime my lot (X) haven't paid me for any on-call or a 16 hour call-out for a major issue that I resolved in November and are ignoring me when I try to speak to HR, Payroll or my manager about this or the stuff the customer is telling me.
I'm trying to get out as this isn't the only thing I'm unhappy about but I want this resolved first.
Thanks for the therapy session.
Following my last update I sent a message to my line manager to tell him that I was on vacation for a week and wanted some movement on this by the time I returned otherwise I'd withdraw from the on-call rota as the money being paid didn't make it worthwhile. I was scheduled to cover the whole Christmas and New Year period as nobody else was willing.
I returned, there wasn't even an acknowledgement of my message (other than a read receipt) so, as promised, I contacted the person in charge of the rota and asked to be removed from it. They managed to get some cover in place using off-shore resource but needed 4 people to cover me due to local employment laws on hours worked.
My manager then made contact to chastise me for removing myself from on-call and said I should have done this through him, He's a people manager with no relationship with my customer, doesn't know what I do and is essentially there to approve holidays and tick boxes, he wasn't needed and as he'd ignored me I presumed he wasn't interested.
Their argument for not paying me the right rates is that it's not in my contract to do on-call and wasn't highlighted in TUPE but I have historical time sheets and old letters stating I do on-call and as I think I mentioned initially my currently employer paid me correctly for on-call for nearly a year when I first joined them. However given they don't agree and don't think it's contractual me withdrawing should have been fine with them.
Subsequently one of the off-shore resources has also left the on-call rota and another is leaving the business so there is a gap in cover.
My customer "Y" (I'm employed by X, they provide me to Y and then then use me to service their customer Z) has now kicked off with my employer and said they are contractually obliged to provide on-call resources, they argue they aren't and there's nothing in the contract about this. However before Christmas they got in touch and asked "if we were to pay you 50% of what you expect (and have received previously) would you go back on the rota?" - I said no, it's all or nothing.
I then took the opportunity to raise a formal grievance over all of this with HR as it seems I need to do this before I can escalate externally for any kind of tribunal. A month on I'm still awaiting the initial meeting to discuss this with someone in the company.
"Y" are now pressuring me to go back on-call as they have no cover and that's making "Z" get annoyed with them. Apparently they are having something added to their contract with my employer.
In the meantime my lot (X) haven't paid me for any on-call or a 16 hour call-out for a major issue that I resolved in November and are ignoring me when I try to speak to HR, Payroll or my manager about this or the stuff the customer is telling me.
I'm trying to get out as this isn't the only thing I'm unhappy about but I want this resolved first.
Thanks for the therapy session.
stevemcs said:
Can you find another employer ? At the end of the day you just need to be paid for callouts, how that affects others is not your problem. Either they pay up and you will provide cover or they don't pay and they end up with no cover.
This, I'd be looking for another job post haste. They sound like a nightmare.Reading your update, I actually think that patience may be a virtue and sufficient pressure will be brought to bear by the commercial threat from the end customer. At that point you can quite legitimately agree to go back on call after they have paid the outstanding amounts to you. I'd also be inclined to upwardly negotiate the rate for the on-call duty as the end customer will have highlighted to management of how much they want/value the service.
In the meantime I'd remain off the roster and be actively looking for a new role as a fall-back position.
With luck your Co. will be forced to recognise that you are a valuable resource. The end user certainly seems to see you in that light.
In the meantime I'd remain off the roster and be actively looking for a new role as a fall-back position.
With luck your Co. will be forced to recognise that you are a valuable resource. The end user certainly seems to see you in that light.
Had a similar situation to you - 4 of us Tupe'd via numerous companies and then the 2 of us split away on another Tupe.
The other 2 guys had been on call for years, early years it was on a pittance and more recently the rates had increased due to better terms on one of the Tupe's we'd been involved in.
Anyway the day comes where they need us on call, both of us agree to it and look forward to it, ask me to provide our "rates" and other details.
Few days later out it comes from HR that those are not our terms we're on the "pittance" rates that the other guys used to get back about 15yrs before.
Makes no sense that we've Tupe'd once more than them via the same companies and they've moved on to a rate provided by one of the later companies but no we're using the original rate provided by the original company we all joined.
Basically as there's 2 of us we decide to tell them to stick it at the rates they are willing to offer, line manager was pretty fair and said he'd see what he could find out. Turns out they had costed it using the "pittance" rate and then added a little charge on the top such as your 20% there for their own benefit.
In the end they came back and offered us the total amount they had costed which we accepted although bedgrugingly as our colleagues earn more for the same cover but it was still about double the initial offer.
The other 2 guys had been on call for years, early years it was on a pittance and more recently the rates had increased due to better terms on one of the Tupe's we'd been involved in.
Anyway the day comes where they need us on call, both of us agree to it and look forward to it, ask me to provide our "rates" and other details.
Few days later out it comes from HR that those are not our terms we're on the "pittance" rates that the other guys used to get back about 15yrs before.
Makes no sense that we've Tupe'd once more than them via the same companies and they've moved on to a rate provided by one of the later companies but no we're using the original rate provided by the original company we all joined.
Basically as there's 2 of us we decide to tell them to stick it at the rates they are willing to offer, line manager was pretty fair and said he'd see what he could find out. Turns out they had costed it using the "pittance" rate and then added a little charge on the top such as your 20% there for their own benefit.
In the end they came back and offered us the total amount they had costed which we accepted although bedgrugingly as our colleagues earn more for the same cover but it was still about double the initial offer.
IanJ9375 said:
Had a similar situation to you - 4 of us Tupe'd via numerous companies and then the 2 of us split away on another Tupe.
The other 2 guys had been on call for years, early years it was on a pittance and more recently the rates had increased due to better terms on one of the Tupe's we'd been involved in.
Anyway the day comes where they need us on call, both of us agree to it and look forward to it, ask me to provide our "rates" and other details.
Few days later out it comes from HR that those are not our terms we're on the "pittance" rates that the other guys used to get back about 15yrs before.
Makes no sense that we've Tupe'd once more than them via the same companies and they've moved on to a rate provided by one of the later companies but no we're using the original rate provided by the original company we all joined.
Basically as there's 2 of us we decide to tell them to stick it at the rates they are willing to offer, line manager was pretty fair and said he'd see what he could find out. Turns out they had costed it using the "pittance" rate and then added a little charge on the top such as your 20% there for their own benefit.
In the end they came back and offered us the total amount they had costed which we accepted although bedgrugingly as our colleagues earn more for the same cover but it was still about double the initial offer.
I'd still have stood my ground. Their incompetence is not your problem.The other 2 guys had been on call for years, early years it was on a pittance and more recently the rates had increased due to better terms on one of the Tupe's we'd been involved in.
Anyway the day comes where they need us on call, both of us agree to it and look forward to it, ask me to provide our "rates" and other details.
Few days later out it comes from HR that those are not our terms we're on the "pittance" rates that the other guys used to get back about 15yrs before.
Makes no sense that we've Tupe'd once more than them via the same companies and they've moved on to a rate provided by one of the later companies but no we're using the original rate provided by the original company we all joined.
Basically as there's 2 of us we decide to tell them to stick it at the rates they are willing to offer, line manager was pretty fair and said he'd see what he could find out. Turns out they had costed it using the "pittance" rate and then added a little charge on the top such as your 20% there for their own benefit.
In the end they came back and offered us the total amount they had costed which we accepted although bedgrugingly as our colleagues earn more for the same cover but it was still about double the initial offer.
Gassing Station | Jobs & Employment Matters | Top of Page | What's New | My Stuff