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Job share in a TUPE situation
I have a job share question. I am currently on an old contract which pays sick pay for six months and bank holiday pay. I am returning to work after maternity leave and have negotiated a job share with a colleague. The company have agreed to it, but say we must take on a new contract. My colleague and I were both TUPE’d to the new company that took over ours and they have their own contract which doesn’t pay the sick pay or bank holiday rate. Our new employer has agreed to the job share if we give up our old contract and take on the new one. Our roles will be exactly 50/50, reducing hours from 40 hours per week to 20 hours per week. My question is can they make us give up our good existing contract? What happens if six months down the line our new employer reassesses the situation and informs us that they don’t think the job share is working – can they make us go full time again and are we in our rights to request our old contract back?
TUPE protects you from any attempt to change your terms and conditions if this is for a reason related to the TUPE transfer. This seems like an attempt to “harmonise” your terms using the flexible working request as an opportunity. The TUPE legislation may mean that any attempt to change the terms would be void, even if you do sign the contract.
It is also arguably indirect sex discrimination. More women than men make requests for flexible working so a practice of requiring them to move to a new contract is indirectly discriminatory.
If you were to refuse to sign the new contract and your request for flexible working was denied, you could have a claim in the Employment Tribunal. Refusing new contractual terms to your detriment is not a permitted reason to refuse a request for flexible working. It is also not a reason justifying what would be indirectly discriminatory.
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