Less favourable maternity policy not transferred under TUPE

The company I work for  transferred under TUPE to another company over a year ago. I presumed that all the terms/conditions and policies that we now follow are for the new company that we have transferred to, including maternity policies. However, I recently found out that all policies were transferred to the new company except for maternity and sickness policy which has stayed the same as our original company policy. My old company’s policy is not nearly as good as the new company maternity policy. At the time of the TUPE transfer, I wasn’t aware of the difference as I was not pregnant. Now that I am pregnant, HR have advised me that I have to abide by the old company policy. Do I have any grounds to challenge the difference in full pay during maternity leave?

When you transferred under TUPE the new employer inherited you on your existing terms and conditions of employment. The TUPE Regulations ensure that employees retain the same terms and conditions post-transfer as they did pre-transfer. Unfortunately, there are no hard-and-fast rules as to how long it takes for your current employer to vary and harmonise terms and conditions of incoming staff with those of its existing workers (indeed if it ever does this).

TUPE is a complex area of Employment Law and to advise fully on your situation I would need further details and to review your contract of employment, the previous company’s maternity leave policy, your current employer’s maternity leave policy and if there has been any amendments to these documents since you transferred. However, as I have said, the basic position is that you transfer on and retain your existing terms and conditions. This is to protect transferring staff to ensure that a new employer cannot change your terms and conditions to your detriment.

In light of the above it is likely to prove difficult for you to challenge the difference in maternity leave pay, especially as you have already raised the issue informally with HR. However, if you would like further clarification on the matter then I would be more than happy to provide you with a quote to review the relevant policies and related documentation.

*Helen Frankland assisted in answering this question.

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