Tuesday Q&As

12.12.23

• Changing terms after a transfer to a new employer. Is that legal?

• Failure to make reasonable adjustments. Next steps?

• Grievance during disciplinary. Can I do it?

• Do I have to attend a disciplinary meeting whilst sick?

• Zero hour contract and dismissal, what are my rights?

• Dismissal on long term sick after being ignored

• Unfair redundancy?

• What is my minimum holiday entitlement?

• Holiday cancellation

• Is my holiday pay correct?

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Changing terms after a transfer to a new employer. Is that legal?

Q. I follow you in TikTok and I would really appreciate your advice. I worked for a trust from 2005 - 2017. During this time, I participated in full out of hours shifts, until I had my first child and went part time and no longer participated in out of hours shifts. 

Then in 2017 we got TUPE'd over. I remained on the same working pattern of 3 days. Now, 6 years later, they are imposing a new rota, to standardise two sites,  and allow me to keep my part time hours - but work out of hours. So, changing my working pattern. 

My employer says they only received my hours from my old trust and not the working pattern. However, since I have been doing this pattern for many years it is custom and practice. Again - they say I am not exempt from out of hours - but my point is - well how have I not worked out of hours for 9-10 years then? 

My circumstances have not changed - and I cannot participate in the out of hours - can my employer impose this change on me? I no longer have my documentation - as our email addresses were changed with the new trust. And I can no longer access that information. I only have a contract which states my hours, not the working pattern - as this was granted via email. I would really appreciate your advice

A. Your situation involves a change in working patterns following a TUPE (Transfer of Undertakings (Protection of Employment)) transfer and raises several important considerations. Firstly, under TUPE regulations, when a business or part of it is transferred to a new employer, the employees' terms and conditions of employment are also transferred. This includes not just your contractual hours but also other aspects of your working pattern.

Given that you have been working a specific pattern for several years, even after the TUPE transfer, there is a strong argument that this pattern has become an implied term of your contract through 'custom and practice'. This means that although it wasn't originally written in your contract, it has become a part of your employment terms because it's been consistently followed over a long period.

However, employers can sometimes change terms and conditions of employment, including working patterns, but they must do this fairly and reasonably. They should consult with you (and any representatives, such as a trade union) and consider any objections or concerns you might have. This is particularly important in your case, as you've mentioned that you cannot participate in out-of-hours work due to your circumstances.

If you feel your employer is making unreasonable changes to your working pattern, you may have grounds to claim that this is a breach of your employment contract. It's important to raise your concerns formally with your employer first. Explain your situation clearly, in writing, detailing why the proposed changes are unsuitable for you and referencing the long-standing custom and practice of your current working pattern.