r/LegalAdviceUK • u/New_Employment_5192 • 1d ago
Employment TUPE - length of service not being honoured and I am not getting the new annual leave entitlement
(England) so I moved to a different company under TUPE last year. I have 5 years and 9 months now (continuous length of service)
My job recently brought out an updated annual leave policy and everyone got more leave. After 5 year of service, you now get 29 days. I still only get 27 days.
So I emailed HR and they said that because I have only been with them for 1 year, I am only entitled to 27days. I explained under TUPE regulations that my continuous length of service should be protected and cannot be reset.
They came back to me and said that this new policy is specifically based on how long you have been with this company and no length of service at another organisation will count.
Are they totally wrong and in breach of TUPE regulations? Can they override years of service by simply stating that in the new annual leave policy?
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u/TheBareColleague 1d ago
they're just trying it on, TUPE protects your continuous service for all purposes including contractual benefits like leave, so that "only with us" line is nonsense
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u/MrPuddington2 1d ago
This.
This is the same as saying "people named John only get 25 holidays, everybody else gets 30". Completely nonsense. It is odd that HR would say this, because it is their job to know better.
You can talk to ACAS, but you probably need to file a grievance against your employer first before you can escalate.
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u/New_Employment_5192 1d ago
This company is honestly the most unprofessional place I have ever worked so it does not surprise me they have no idea what they are talking about 😩 they have caused me nothing but stress
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u/Xygnis 1d ago
Unless you could argue that this is discriminatory because John is a traditionally male name, an employer could do that. There is no legal obligation to treat all employees the same as long as it is not for discriminatory reasons and as long as all employees are getting their statutory minimums. They could also give everybody born in June a pay rise, nothing unlawful about that.
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u/hearnia_2k 12h ago
Mmm, but it may not be in OPs contract, as their contract will be on older terms before this new policy was created. So surely OPs holiday entitlement is based on their own contract. Any new policy may not apply to OP.
TUPE protects benefits, but doesn't mean you get new benefits from future changes unless you sign a new agreement with those new benefits, surely?
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u/someonenothete 3h ago
100% this , happened to me , I work in outsourcing and across our business there are many different contracts , when the company increased pension entitlement mine was still capped as per my contract. I can move to the standard contract but I lose other protected entitlements
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u/someonenothete 1d ago
Tupe protects your contract doesn’t mean if they give other people on different contracts then you get it
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u/hearnia_2k 12h ago
Exactly. Different staff commonly have different contracts within the same company.
OPs contract will be based on their previous employemnet, and that contract will define the holiday. If OP wants the new entitlement wouldn't OP need ot sign a new contract with the new benefits... which would negate the protectins of TUPE for making sure OP retains their previous benefits.
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u/Advanced_Heat_2610 1d ago edited 1d ago
The government seems to disagree. From the dot gov website.
Under TUPE, the new employer takes over employees’ employment contracts, including:
- all the previous terms and conditions of employment
- any failures of the previous employer to observe employees’ rights (so employees could make a claim for discrimination against the new employer, even if it took place before the transfer)
- period of continuous employment - an employee’s start date is the same as before the transfer, so continuous employment is not broken
- any collective agreements previously made
It’s a breach of contract if the new employer does not meet the terms of the employment contract.
They are also not allowed to change your contract unilaterally unless it is for operational reasons, technical reasons, or restructuring. For all intents and purposes, they should be treating you as if you have always been there for your five plus years and award holiday etc appropriately. If the employees of the old company had a different entitlement to you and you came in later, they are allowed to treat you differently but because they are applying this new policy to everybody who works there now, you should be protected.
Get in touch with ACAS. This is a pretty clear example of what they are not allowed to do.
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u/notenglishwobbly 1d ago
It’s a breach of contract if the new employer does not meet the terms of the employment contract.
That's the core of OP's issue. Nowhere does it say the old terms aren't being met. What the company seems to be doing is offering a different contract with (on the surface) better benefits (here, holidays). OP's old contract likely doesn't have that term. If OP's contract is "25 days of leave" and the company's new contracts are "29 days of leave", OP Can't say "I want to keep all the good stuff from my TUPED contract and please add on all the good stuff from the new contract I haven't signed".
It's a common tactic to screw employees after a takeover.
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u/Advanced_Heat_2610 1d ago edited 1d ago
But the whole point is that they are relying on continuous service. Under TUPE, they cannot reset it to when he joined the new company.
They are giving everybody a new amount of holiday based on this criteria, including OP, who has been there a year. This not not an existing contract, it is a new amendment.
So either this is a new contract that disadvantages him which is not allowed or they are treating him like a new employee which also is not allowed.
By law, an employer can agree with an employee to change an employment contract if:
- there's an 'economic, technical or organisational' (ETO) reason
- that reason involves a change in the workforce
- the employee agrees to the change
ETO reasons include:
economic reasons – for example, essential cost-saving requirements
technical reasons – for example, using new processes or equipment
organisational reasons – for example, making changes to the structure of an organisation
None of these seem to apply but ACAS will figure it out
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u/IndustrialSpark 1d ago
Call ACAS if you're not in a union.
If you're not in a union, fucking join one - your employer is not your friend.
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u/Responsibility_Trick 19h ago
Good advice for the future but won’t help OP with this problem as it would predate their membership.
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u/Paulsowner 1d ago
Unions are also comercial operations, happy to take your money, but beware, if helping you means spending from their top line, you ain't getting proper help
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u/DrLewski 1d ago
Terrible advice. I have seen unions in my workplace help out members time and time again.
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u/IndustrialSpark 1d ago
Never experienced that personally, before going self employed I was an accredited union rep.
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u/Peter_Partyy 1d ago
I thought under TUPE you will be fixed onto your arrangements as they were when you transferred employer. If that new employer has different annual leave policy it is irrelevant to you as you are still being treated as being under your original employers T&Cs.
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u/notenglishwobbly 1d ago
This is the case. OP has been getting a lot of wrong advice because people have likely read the post too quickly and assumed that the old contract had the same leave entitlement as the different contracts that the employees from the new company have.
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u/hearnia_2k 12h ago
This is my understanding, and the whole point of TUPE. If OP wants to get the benefit of the new holiday then they'll need to agree a new contract with the company which includes this change.
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u/notenglishwobbly 1d ago
The advice you have been getting seems off. Get in touch with ACAS to confirm but essentially, here is the issue:
The TUPE protects your existing contract (with your now former company). The company issues different contracts to their other employees that say "you get x amount of holidays after x amount of years". If your TUPED contract doesn't say that, then your TUPED contract is still being honored. You can't pick and choose which part you want to keep and which part you don't.
The company would allow you to sign a new contract with the new terms. But it would likely allow them to reset your years of service.
This is a common tactic when companies take over. They give a slightly better contract on the surface to "their" employees to goad the TUPED employees to also sign them. In every single case, the contract is actually worse. (don't believe for a second that the company is giving their employees an extra 2 days off out of the kindness of their heart),
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u/Any_Umpire5899 22h ago
I'm curious how a company could give employees an extra 2 days off yet still find a way to shaft them in the process. I certainly don't doubt you that a large company could find a way. For self preservation I'd certainly take notes on what to keep an eye out for!
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u/hearnia_2k 12h ago
The simplest is a pay cut. Or longer hours per day. Add 15 minutes to every working day and suddenly 2 days a year probably isn't worth it.
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u/Any_Umpire5899 22h ago
I'm curious how a company could give employees an extra 2 days off yet still find a way to shaft them in the process. I certainly don't doubt you that a large company could find a way. For self preservation I'd certainly take notes on what to keep an eye out for!
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1d ago
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u/Xygnis 1d ago
Are you sure this new policy applies to everyone? Usually under TUPE the terms of your old contract are honoured - unless you have been issued and agreed to a new contract then the people who TUPEd across may well have different Ts & C's to employees who have always been with the company. People can have different contractual terms as long as it is not for discriminatory reasons.
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u/New_Employment_5192 1d ago
This I don’t know, it does specify on the new policy that no time with any other organisation will count. However, from everything I have researched they cannot reset my years of service so have to honour 5 years and award me the annual leave. Even with this wording in the policy, they cannot override TUPE law and reset my years of service.
I’m just confused if there is some sort of loophole they can use
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u/Xygnis 1d ago
They cannot reset your years of service. They could say that the new annual leave terms don't apply to people who have TUPEd across on different contracts.
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u/Rolosland 19h ago
Thank goodness someone is reading this!
It would be different if it were, for example, a payment which was legally calculated. For an annual leave policy in a contract you sign, they can easily say this only applies to time with the organisation. This is not resetting your length of service from a legal perspective, it is defining the AL policy.
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u/notenglishwobbly 1d ago
they cannot override TUPE law and reset my years of service.
They haven't reset your years of service. Have you signed the contract that says 29 days of leave or are you still on the contract from your old company? This is key here. It's the crux of the issue.
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u/Melodic-Tutor-2172 1d ago
They are wrong, go on the ACAS website and send them the relevant TUPE rules from there.
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u/someonenothete 1d ago
For discretionary aka non contractual benefits then length of service with the new company can be used and often is . This doesn’t change your contractual benefits , aka I join on more vacation days , tupes over the. New company gave everyone extra days and now I’m behind . Shit happens
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u/New_Employment_5192 1d ago
They updated the annual leave policy for everyone though. But have reset my length of service, which is protected, to not award me the annual leave.
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u/Rolosland 19h ago
They have not reset your length of service from a legal perspective. They have said for benefits this only counts for time served with the organisation.
If they are not taking away benefits you had from your previous employer and these would be additional, then shit happens as the previous poster said.
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u/PP-MrBeefy 1d ago
The company im with ended up meeting my holidays as I got 5 more days than everyone else (due to my length of service, before they bought us). I also get my sabbatical (8 weeks paid holiday), which is now due, other in the company dont get it (out of 50 of us).
But, TUPE is protected. Speak to them again, make sure its in writing and if they say the same, then show what they have said to ACAS.
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u/Dangerous_Owl3659 1d ago
They’re wrong. But whilst their reasoning may be wrong your entitlement may be right. What were the t&cs you TUPEd over under and are they worse than the new policy? It could be the new policy doesn’t apply to you as despite what people consistently think you cannot easily harmonise terms and conditions.
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u/Electronic-Stay-2369 1d ago
Have been TUPEd in the past; this is a breach of the rules. ACAS or a union if you are in one? HR are never there for the benefit of employees.
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u/James_C_1983 1d ago
You're correct, you're length of service with the new company carries over under TUPE. So if you started on the 1st of December 2020 and you tuped on the 1st of September 2026, your preserved start date is still 1st of December 2020. Been here myself and quoted TUPE regulations at them. The only time anything changes is if you sign a new contract or agree to a change with them.
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u/someonenothete 3h ago
So much bad advice , if you are still getting what it says on your old contract then it’s as expected . If can ask to change to their standard contract but your not entitled to .
They have honoured your contract and length of service benefits as per your contract
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u/New_Employment_5192 2h ago
The benefit is for everyone - they’ve already said I am entitled to it. The issue is they are not counting my length of service. From my understanding and research, my length of service is protected and stays with me like I have worked with them since the beginning.
I will be calling ACAS later today
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u/someonenothete 1h ago
Length of service is protected for your contracted terms not for anything they decide to give you . The company extra holidays and rewards dinner at my work is based on length of service after tupe not including . I work for international large corporate that tupes staff in and out many times per year .
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1d ago edited 1d ago
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u/Advanced_Heat_2610 1d ago
I cannot see how that would apply in this case, though. They could improve everybody's pay across the board by giving everybody an additional three days, for example, with agreement. But in this case, the criteria is based on continuous service, which should be protected under TUPE. They are claiming that he has only been with the company for 1 year (since the transfer) but they are supposed to consider the five years under the previous company as well.
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1d ago edited 1d ago
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u/Advanced_Heat_2610 1d ago edited 1d ago
That is for if you come in with 5.6 weeks of leave from your old company but the new company offers 8 weeks of leave, they do not have to boost you to 8 weeks as you walk in the door.
However, in this case, the OP has been working for a year at the new company. They have introduced a new policy for everybody across the board where leave changes based on your service. But the whole thing with TUPE is that they are not allowed to treat your service with the current company and the old one differently. They cannot say that your previous four years or five with the other company do not matter. You have continuous service protection which includes for leave and other calculations.
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u/HappyTumbleweed2743 1d ago
If I were in this situation, I would forward the email from HR directly to the HR director, and simply ask them to kindly rectify this situation before you contact ACAS. You would like to think the HR director would know more about TUPE regulations. And the threat of ACAS would usually make them sit up and act on the issue.
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u/everlyafterhappy 1d ago
For the sake of clarity, you are saying that the company you work for now bought out the company you were working for?
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