New boss is trying to change my flexible working agreement

I’ve worked for the same shop for eight years. Trade hasn’t been great in the last couple of years and in June the (old) boss dropped on us that he’d sold the shop and we’d have a new boss in the morning. We were told it was sold as a going concern & that everything would stay the same, but the new boss is making changes. I have a verbal agreement to work flexibly and have been working this way since April.  The new boss has allowed me to continue to work my hours, but has recently made efforts to change them.

I’ve been getting advice & it seemed TUPE regs would protect us, but I’ve since found out that the business was sold as a shares transfer & it looks like we’ve got no protection at all. The business is based in the same premises & the job is the same. If the building changed hands, surely that’s a transfer of assets, not shares?

 

It can sometimes be difficult to identify when there has been a transfer which will constitute a transfer of employment under the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (TUPE).

A sale of shares is not necessarily a transfer because the identity of the employer may not have changed.

In short, a TUPE situation will arise when the transfer will result in you having a new employer. However, the facts of each transfer are not always clear and each case needs to be examined to determine if there is a qualifying transfer under TUPE (I would need to review the facts of the transfer, the identities of the previous and current individuals involved, and any information given to you at the time, to be able to advise on this point fully).

In any event it appears that your query is more in relation to your employer trying to change the terms of your flexible working arrangement.

  • If there was no TUPE,  then you will still be under your initial employment terms, which cannot be changed without your consent
  • If there was a transfer under TUPE your previous service with your outgoing employer will carry over and you will retain the same employment terms. The TUPE Regulations protect employees from having their employment terms changed purely for the reason of the transfer.

Therefore, in either event you still have binding employment terms which cannot be changed by your employer without your consent. It is unfortunate that there is ambiguity over whether there has been a transfer under TUPE, and your previous employer should have consulted the workforce to advise you of the impending transfer and the implications, prior to the transfer taking place.

In relation to flexible working arrangements, the general position is that once a flexible working arrangement has been agreed it permanently changes your employment contract unless there was an agreement that this change would be temporary. Once permanently changed, any further changes to your employment contract cannot be made without both you and your employer’s agreement.

If your employer is trying to change your contract without your agreement this could constitute a breach of your contract or unfair constructive dismissal.  You could consider the following:

  1. You should first consider speaking informally with your employer to find out why he is seeking to change your flexible working arrangement.
  2. If this does not work then you should consider bringing a formal grievance.
  3. If the matter still does not resolve you could consider bringing a claim against your employer. Before any claims are brought you must also consult ACAS. Please note that to bring some types of claim, such as unfair dismissal, you must have at least 2 years continuous service.

I would need to know how your employer signified his agreement to your flexible working arrangement, information on the changes he is suggesting and the reasons for the changes, to know if this is something that your employer is reasonably requesting.

 





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