Proposed demotion after TUPE

I have been in my current role as restaurant manager for 19 years. My business is being Tuped over to a new owner. It is proposed at present for them to take over the managerial side of things as they would like to restructure, but due to staffing levels this isn’t possible. They said when they take over we will have a two-week consultation period for job roles to be put forward from both sides. If we can’t agree on another role I will be dismissed for Some Other Substantial Reason. I have recently had a meeting with the new owner who told me none of my current job role would be available as she will be doing my role. She informed me there was a waitress job available, but my terms and conditions would not stay the same and I would be put on minimum wage as a waitress. If I refuse it can I be dismissed? If my job role is being taken away from me is my job role redundant?

Without the full facts as to your case it is difficult to advise fully on the proposals suggested by your new employer. That said, the law of TUPE gives enhanced protection against unfair dismissal on a TUPE transfer by providing that certain dismissals are automatically unfair. As a result, an employer’s ability to dismiss employees fairly when there is a TUPE transfer is severely limited. Any dismissal of an employee with the necessary period of continuous employment (which with 19 years you certainly do have) will be automatically unfair where the sole or principal reason for the dismissal is the transfer. However, where the sole or principal reason for the dismissal is for an economic, technical or organisational (ETO) reason, the dismissal will be only potentially unfair.

The economic, technical or organisational reason must also entail changes in the workforce. This could include a change in:

  • The location.
  • The number of employees – genuine redundancies (that is to say, changes in the numbers employed or removal of a role, for example) are likely to fall within the scope of this definition.
  • The functions performed by employees – changes to entire job functions are likely to fall within the definition. Changes in function would cover a new requirement on an employee who held a managerial position to enter into a non-managerial role or to move from a secretarial to a sales position.

With this in mind, in order for both your current employer and your new employer to be compliant with the TUPE Regulations, they would need to properly inform and consult with you as to the changes that may be made. I would suggest that you take legal advice on this matter, or contact the Citizens Advice Bureau as you may have a claim.

The information and opinions within this article are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

 

 





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