TUPE and pay

Q. Our employer is dragging their heels on pay negotiations in advance of a TUPE transfer. They don’t want to reach an agreement which will bind the new employer. Is there anything we can do?

A. Workers do not have a general entitlement to a pay rise, let alone a rise on a particular date, unless it is part of their contract.

First you need to check the nature of any written contractual entitlement.

If there is nothing adequate in writing, any entitlement would have to be implied, probably from what has happened in previous years.

If there is a contractual entitlement to a rise on a particular date, then the original employer can be sued for breach of contract or for unlawful deductions from pay, provided the amount of the entitlement is clear.

Deliberate failure to pay a rise on time may even amount to fundamental breach of contract on the part of the employer, entitling employees to resign and claim constructive dismissal (though this avenue is fraught with dangers).

Alternatively, if the rise is still owing at the time of the transfer, the debt carries over to the new employer.

Either way, back pay should be paid to the date when the rise was first due.

The position is more difficult if the entitlement is merely to enter negotiations and not to any quantifiable pay rise.