TUPE

Q: Our contract has just been transferred to a different employer under the TUPE transfer regulations. I have worked every Sunday for the past eight years and received overtime for this but our new employer has just announced that Sunday working will stop. Is this lawful?

A: The effect of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) is to protect your terms and conditions of employment, so that a new employer cannot change your contract as a result of the transfer.

Whether or not your overtime is protected will depend whether or not it is contractual. For overtime to be contractual there must be an obligation on you to work it, and an obligation on the employer to provide it. This will be established either through your original (pre-TUPE) written contract or through conduct.

For it to have become part of your contract through conduct, it would have to be the case that you have always had to work overtime for a substantial period without exception. Another indication could be whether or not your holiday pay includes overtime.

For more information on contracts, see the LRD booklet Contracts of employment - a legal guide, February 2005