You have enquired as to whether you are entitled to SMP if your contract is not renewed. ...read more
I currently work 3 1/2 hours in a dental surgery and have done so for the last few years. My boss rang me to tell me that he was selling the practice and a company was taking over in September sometime. The new contract that is being offered expects:
1. More work in the same hours with a payment claw back if the work is not done
2. I will have to pay for laboratory fees whereas I currently do not
3. My holiday entitlement will be much less which will make life difficult with my children’s commitments to manage.
Obviously I am not happy and don’t want to sign up to this, but it is a corporate body with standard contracts.
I will not be able to fulfil this new working ethos on any of the accounts as I will be much worse off. Will it constitute dismissal or redundancy if I do not sign and do I have any rights in this? Technically for tax purposes I am self employed but work under a services contract. My current boss has never got round to giving me a written contract despite requests, but the same terms have applied over all the previous years. I have also never had a pay rise since I started.
Firstly, I note you are regarded as being self-employed and therefore it is sensible to consider your employment status, prior to answering your main question. Any Tribunal would look at various factors in deciding whether you are an ‘employee’. You state that you have been doing the same job, at 3.5 hours per week for the past few years and you receive holiday entitlement. I would therefore assume (albeit I would need more facts and details to be certain) that you would now have employment status.
It sounds as though the business transfer will be covered by The Transfer of Undertakings legislation (TUPE), which is designed to protect the rights of employees when a business changes hands. TUPE applies if a business is being bought or sold, but wouldn’t apply if just shares, assets or equipment are transferring to a different owner (it is best to check which is happening here, albeit I am going to proceed on the basis that it is a business sale).
Under TUPE employees should not lose their existing employment rights as the new employer takes over employees’ employment contracts, including all the previous terms and conditions of employment.
Before the transfer occurs, if the employer knows that their employees will be transferring to the buying company, they can’t normally change the employee’s terms and conditions to make them the same as those of the new company – even if the employee agrees to the change.
You state that after the transfer, you have been told that your terms and conditions will be changes as you will be expected to do more work in the same hours with a payment claw-back if the work is not done, you will have to pay for laboratory fees when you do not at present and your holiday entitlement will be much less.
The general rule under TUPE is that it is automatically unfair to dismiss an employee because of the transfer itself. For example, if you are sacked because the buyer refuses to take on some of the employees, this would be an automatically unfair dismissal. However, dismissals may be fair if the reason for the dismissal is an “Economic, Technical or Organisational reason entailing changes in the workplace” (for example, where the buyer dismisses employees after the transfer because the new combined workforce is too large, meaning that redundancies are needed), or if the dismissal can be shown to be for genuine redundancy reasons. In both cases, even if your employer has an ETO reason for dismissal, it must still follow a fair and proper dismissal procedure.
The absence of a contract may make things more difficult as there will be nothing in writing concerning your contractual rights. However, you should be able to prove what you were paid, the amount of holiday you were entitled to etc through wage slips, rotas etc.
Unfortunately, the TUPE legislation is complicated and given that at various stages in the advice above, I have stated it would be helpful to have more information, I would insist that you take legal advice or speak to a Union Rep (if you are a member of a Union) as soon as possible.