Employer's change of policy on tattoos and piercings - advice sought!

[Soul On Ice]

Thanks 2 Hardcore I'm the TUPE queen, me Any news/update?

Derian you sure are the TUPE queen

I'm a bit hacked off that I didn't spot that one myself. Tho given I wasn't in a work environement I'll forgive myself.

Tho I must say in my opinion if the old dress policy was silent on tats and piercings I'm not sure if you'd convince an ET that "the ability to have visible tats and piercings" is an explicit contractual term that the new employer is breaching under TUPE. Tho, you are clearly not ill informed on this matter so I'm not saying you are wrong, just that my opinion is different - which is porbably down to me being very cautious cos as a trade union officical you try not to get members' hopes up. As I say to every member ultimately mine is just an opinion - it's the ET (or even the House of Lords) that makes the final determination.

That said - good advice from Derian. Nice to see that there are others on the forum who can give a properly informed opinion on such matters.

 

[WouldBe]

Get them to all turn up to work wearing burkhas (sp). This will not only cover any tattoos but also most piercings as well.

See what management says to that.

 

[Derian]

Derian you sure are the TUPE queen

I'm a bit hacked off that I didn't spot that one myself. Tho given I wasn't in a work environement I'll forgive myself.

Tho I must say in my opinion if the old dress policy was silent on tats and piercings I'm not sure if you'd convince an ET that "the ability to have visible tats and piercings" is an explicit contractual term that the new employer is breaching under TUPE. Tho, you are clearly not ill informed on this matter so I'm not saying you are wrong, just that my opinion is different - which is porbably down to me being very cautious cos as a trade union officical you try not to get members' hopes up. As I say to every member ultimately mine is just an opinion - it's the ET (or even the House of Lords) that makes the final determination.

That said - good advice from Derian. Nice to see that there are others on the forum who can give a properly informed opinion on such matters.

Hi Soul On Ice

Thanks for that I don't think we're a million miles apart re the opinion. I'd be coming at it from the implicit rather than explicit contractual terms (given sight unseen re knowledge of what, if any, established dress policy and causal link to transfer). I'm less cautious, don't have to worry about managing TU members' expectations. My line of work is assessing merits of case, then tactics to get to desired outcome. IME these things rarely get to full hearing, mostly settled if enough hassle/potential legal costs. Good example to persuade recalcitrant employers was the jobcentre collar and ties class action last year.... can't see any private sector company going through similar type of grief/adverse PR (even if they are "extreme" )

I've read what 2 Hardcore had to say about contracts in suspension (my words/interpretation) which seems of course, a complete smokescreen from a local manager possibly out of his/her depth.

Into this now!

2 Hardcore - if they're up for a bit of a fight.... find out what was discussed at the pre transfer consultation meetings with the elected employee representatives. Your personal employment team will take it from there!

 

[2 Hardcore]

Update: it was my daughter's day off yesterday; she's taken copies of this thread, and of Derian's TUPE advice, to work with her today, initially to talk about with her supervisor (who, being tattooed himself, is not happy).

Derian - I'll ask her to find out whether there was employee/union representation at the pre-transfer stage (although I have to say that I'm not optimistic that there was, given the shambolic way the whole thing seems to have been done).

 

[Derian]

Update: it was my daughter's day off yesterday; she's taken copies of this thread, and of Derian's TUPE advice, to work with her today, initially to talk about with her supervisor (who, being tattooed himself, is not happy).

Derian - I'll ask her to find out whether there was employee/union representation at the pre-transfer stage (although I have to say that I'm not optimistic that there was, given the shambolic way the whole thing seems to have been done).

Good to have a bit of a fact finding mission first. Also, did your daughter receive a letter/announcement from the old company about the takeover? Sometimes some of the obligatory stuff about information and consultation is in there (albeit often crafted with the objective of being skim read/oblique).

I'd just suggest that your daughter doesn't unduly raise her head above the parapet just yet. The supervisor sounds OK but the chances are that he will (naturally) be feeling a bit insecure with the new regime. I know it sounds a bit cynical, but what people say to their staff are not always what they say to their bosses.

 

[likesfish]

actually did that at one shift at a hostel where I worked after they started being stupid about a dress code with out the telegraph though.
did'nt cost me anything as the hostel used to get a massive donation of suits and shirts and ties
the dress code Idea got dropped

 

[Jangla]

I'm not an expert on this so perhaps someone else can confirm, but wouldn't this fall under the TUPE regulations as it's effectively a tranfer of service and therefore all terms and conditions of employment have to remain the same or, should they change, the employee has the right to remain on the old ones?

 

[1927]

Derian you sure are the TUPE queen

Tho I must say in my opinion if the old dress policy was silent on tats and piercings I'm not sure if you'd convince an ET that "the ability to have visible tats and piercings" is an explicit contractual term that the new employer is breaching under TUPE.

Surely the fact is not that the previous countracts ahd an explicit term allowing tats and stuff,but the fcat that as it was silent on this point and it was obviously acceptable under the old contract. Seeking to impose a new term into the contrcats ,even if the term is reasonable in the case of a new employee,it still amounts to a change for existing employees!

 

[geminisnake]

Errrr, she'd rather i didn't say...... but it's not route one!

But how can we take action against the bigotted gits if we don't know who they are?

Hope this gets sorted out in favour of the workers, though I have my doubts.

 

[Soul On Ice]

Surely the fact is not that the previous countracts ahd an explicit term allowing tats and stuff,but the fcat that as it was silent on this point and it was obviously acceptable under the old contract. Seeking to impose a new term into the contrcats ,even if the term is reasonable in the case of a new employee,it still amounts to a change for existing employees!

I did say somewhere that my advice was naturally cautious as that's the way you have to be when advising members - it is not good to get people's hopes up. Plus I always take a pessimistic view, mainly borne from bitter experience. I always try and see what argument the emplyer may repsent and then assess teh case in light of this.

The difficulty with this as I as I see it:

a) whether the introduction of the policy would explicity be viewed as a contractual term by the ET. This is not entirely striaghtforward. I know of similar situations where ETs have determined that the introduction of such a policy is not a change to the contract but simply the introduction of the employer's policy. Employers regualrly change policy with and without the agreement of trade unions and these policy changes are not necessarily deemed to be contractual changes if presented to an ET. Unfair? Maybe, but ETs aren't about fairness they are about teh strict application of the law.

b) Even if you perusade the ET that this is a contractual term that has been changed you still have to show that a breach of TUPE occured. You would have to demonstrate that the change was a consequence of the transfer. As Derian mentioned earlier the emplyer has a defence if they can demonstrate that the change was for "Economic. Technical or Organisational" (ETO) reasons. I've seen employers conjure up crap ETO reasons and have an ET find in their favour. So if the employer did decide to do this there is a chance they could convince the ET.

That said the term is clearly unfair. Ther is every chance that a TUPE case could be won by the staff at the ET but there are also weaknesses. I don't like the fact that there are weaknesses but as I said ealier experience leads me to be cautious. I would point out, as I always do to members, I can only give an opinion - it is the ET that gives the final legal determination.

My advice to members on nearly every issue is that it is always better to organise members and negotiate with the emplyer than go to the ET. Negotiations can get you an agreement and guarenteed result. If you go to the ET and lose, the employer will invariably force their postion on you and also get bullish about getting heavy handed on other issues.

 

[equationgirl]

I could understand it if it was M&S, but given the nature of the goods and the customers' probable attitudes to such things, it just seems ludicrous, and amending the dress code could actually affect the sales, given that the kind of customer who buys there would be put off by a more straightlaced shop assistant.

If it wasn't a problem before, I don't see how it can be a problem now.

 

[mhendo]

I could understand it if it was M&S, but given the nature of the goods and the customers' probable attitudes to such things, it just seems ludicrous, and amending the dress code could actually affect the sales, given that the kind of customer who buys there would be put off by a more straightlaced shop assistant.

If it wasn't a problem before, I don't see how it can be a problem now.

Maybe this is a case where the market might work in the employees' favour. If sales start to drop off following this stupid management decision, and if stores that do allow piercings and tattoos increase their market share, maybe the idiots at head office will rethink their policy.

I'm not the sort of person who's in the market for skating goods, but if i were, then i'd want to be served by someone who looked like they actually knew about skating.

 

[Herbert Read]

Get ACAB tatooed on your head

 

[2 Hardcore]

Derian - nobody in the shop recalls notification about any pre-transfer consultation; no-one there (as I suspected) is a union member.
My daughter started work there within a few weeks of the takeover, so wouldn't have had any such notification herself anyway.
A number of the staff are keen to take some kind of collective action, and she's left it in the hands of her supervisor at this stage (I think as a part-timer and a relatively recent addition to the staff, she feels she can't rock the boat too much herself). Her supervisor seems to be a pretty intelligent and organised guy - hopefully they won't just let this all slide.

 

[gawkrodger]

I'm not the sort of person who's in the market for skating goods, but if i were, then i'd want to be served by someone who looked like they actually knew about skating.

if you did skate you wouldn';t buy anything from the shop in question!

 

[tobyjug]

I still think the company will win if challenged in a court or tribunal due to past cases.
For interest:-
http://www.employment-solicitors.co.uk/work-dress-code.htm

http://www.incomesdata.co.uk/studies/clothing.htm

 

[1927]

I still think the company will win if challenged in a court or tribunal due to past cases.
For interest:-
http://www.employment-solicitors.co.uk/work-dress-code.htm

http://www.incomesdata.co.uk/studies/clothing.htm

TJ continues to miss the point totally. Its not about whether a dress code is a lawful term we all agree that an employer has the right to include one in a contract.The point is whether a new employer has the right to make such a change to a contract thereby changing conditions of workers already employed. Furthermore its a rather different case to thatw hich you linked to about a trainee solicitor these peeps are selling skate gear ffs!

 

[Derian]

Derian - nobody in the shop recalls notification about any pre-transfer consultation; no-one there (as I suspected) is a union member.

It may well be that there were elected employee representatives rather than union representatives for consultation purposes? In any event, the TUPE regs do not allow for the proscribed information & consultation process other than with "appropriate representatives" unless "if, after the employer has invited affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to each affected employee the information set out [legally required information about the transfer]". So either the employer didn't comply with the TUPE regs, or the representatives didn't pass on the info to the employees.

My daughter started work there within a few weeks of the takeover, so wouldn't have had any such notification herself anyway.

and

(I think as a part-timer and a relatively recent addition to the staff, she feels she can't rock the boat too much herself).

I think that's very wise, given her length of service and the timing of her joining.

A number of the staff are keen to take some kind of collective action, and she's left it in the hands of her supervisor at this stage Her supervisor seems to be a pretty intelligent and organised guy - hopefully they won't just let this all slide.

Assuming that the ex-employer and current employer seem to have failed to comply with the TUPE regs overall - I think that's their strongest argument as a vehicle. The issue with the tats and piercings would follow on naturally from there. E.G. "You've failed to comply with the law relating to transfers of undertakings (we weren't consulted, not even notified in advance) and you are now taking measures - by way of example the unfair and commercially questionable new dress code - that may have been a factor in our decision whether to object to the transfer or not. We obviously don't want to make complaints to the Employment Tribunal about the failure to inform or consult, but clearly we will if we can't sort this out sensibly". Or words to that effect.

The downside to that approach is that complaints about failure to inform or consult have to be presented to the ET within 3 months of the transfer unless they can show that it wasn't reasonably practicable to have done so, eg they didn't know the transfer had taken place.

 

[2 Hardcore]

'The downside to that approach is that complaints about failure to inform or consult have to be presented to the ET within 3 months of the transfer unless they can show that it wasn't reasonably practicable to have done so, eg they didn't know the transfer had taken place'

How about the grounds for a delayed complaint being the fact that they were unaware of their right to be consulted at that time? Would there be any mileage in that?

 

[tobyjug]

Furthermore its a rather different case to thatw hich you linked to about a trainee solicitor these peeps are selling skate gear ffs!

It was not an actual case but a for instance.
I would also point out there is stacks of precedent and companies have always won the day.
I am not taking sides about this issue merely pointing out it is, in my opinion not worth the hassle trying to fight an unwinnable case.

 

[Derian]

How about the grounds for a delayed complaint being the fact that they were unaware of their right to be consulted at that time? Would there be any mileage in that?

Yes, if it gets to the point of ET claims, they could throw that in. Plus maybe that they didn't even know the transfer had taken place until their first payslip post transfer (with the new employer's details)... which would also help on the timeframe issue. ET's tend to start from the view that the employer has a case to answer and are reasonably open to a good argument to extend the timeframe - although not a guarantee.

I guess there are two key issues here in terms of negotiation:

1. The threat to the employer (and ex-employer) of lots of ET claims for failure to inform and consult - which if successful could lead to a compensatory award for each person claiming + of course the legal costs to defend any such actions/adverse PR/demotivated workforce etc.

2. Other backlash - I'm thinking here that ANY other measure that the new employer seeks to introduce (reasonable or not) would be more critically scrutinised and challenged in the future - TUPE claims ad infinitum. Better from the employer's point of view to gracefully back down on what could be perceived as a relatively minor issue (although not of course to the staff). Could defuse and if handled well be a positive move e.g. acknowledge not handled well, set up employee reps etc for the future. New start.

More info about how the transfer was conducted, what information provided to employees etc (and when) would be helpful.

 

[Derian]

It was not an actual case but a for instance.
I would also point out there is stacks of precedent and companies have always won the day.
I am not taking sides about this issue merely pointing out it is, in my opinion not worth the hassle trying to fight an unwinnable case.

I do see where you're coming from, and I accept that in "normal" day to day bunfights about whether or not the employer has the right to establish a dress code appropriate to their business - more often than not the employer will be successful unless their proposals are discriminatory in some respect.

However, companies do not always win the day. Do you think that the jobcentre won the day last year over the highly publicised collar and ties class action? No.

And this is not a normal bunfight. The issue here is not about the same employer trying to change a dress code. It's about a new employer trying to change a dress code on the back of a transfer of undertaking - coupled with a seeming failure to comply with the legislation that protects employees when a business is sold.

It's all a bit more complex than the examples you give, but they'd be good examples in a different context

 

[Soul On Ice]

However, companies do not always win the day. Do you think that the jobcentre won the day last year over the highly publicised collar and ties class action? No.

And this is not a normal bunfight. The issue here is not about the same employer trying to change a dress code. It's about a new employer trying to change a dress code on the back of a transfer of undertaking - coupled with a seeming failure to comply with the legislation that protects employees when a business is sold.

It's all a bit more complex than the examples you give, but they'd be good examples in a different context

Derian is spot on here - this is not an entirely straightforward case. There's enough issues in here to make a it possible runner. My personal view is that I don't think you'd win it but it is a very close call. My main reason for saying you wouldn't win it is just because ETs are just so stacked against the applicant. It's definitely the sort of case I'd be looking to get a second or even third opinion on from a colleague.

And you are dead right that employer's don't' always win. Sometimes, at the union we don't support cases cos we don't think there is a reasonable chance of winning it and then the member goes on to take it themselves and they win it. This only happens occasionally and thankfully this hasn't happened on any of my cases - the only time people have taken cases that I've said we can't support they gone on to lose. Touch wood I will keep up this success rate.

 

[tobyjug]

However, companies do not always win the day. Do you think that the jobcentre won the day last year over the highly publicised collar and ties class action? No.

If you can find me one employer that has lost over a policy of having a dress code that requires people dealing directly with the public to have no piercings ( a ring in each ear excepted) or tattoos visible whilst at work I will be very surprised. It is more or less a standard requirement.

 

[Derian]

If you can find me one employer that has lost over a policy of having a dress code that requires people dealing directly with the public to have no piercings ( a ring in each ear excepted) or tattoos visible whilst at work I will be very surprised. It is more or less a standard requirement.

Wot I said in post 52:

I do see where you're coming from, and I accept that in "normal" day to day bunfights about whether or not the employer has the right to establish a dress code appropriate to their business - more often than not the employer will be successful unless their proposals are discriminatory in some respect.

 

[2 Hardcore]

Daughter told me yesterday that the senior supervisor/sometime acting manager (labret, tattoos) has read through all your advice and comments, and some other bits and pieces she'd gathered online explaining TUPE. Whilst he's unhappy with what's happening, he's also worried about his job prospects if he proceeds with any type of complaint - I had a feeling this might happen - no doubt a situation some employers bank on.
I got the impression that without his support, it's unlikely anyone in the store will do anything.

 

[Derian]

Daughter told me yesterday that the senior supervisor/sometime acting manager (labret, tattoos) has read through all your advice and comments, and some other bits and pieces she'd gathered online explaining TUPE. Whilst he's unhappy with what's happening, he's also worried about his job prospects if he proceeds with any type of complaint - I had a feeling this might happen - no doubt a situation some employers bank on.
I got the impression that without his support, it's unlikely anyone in the store will do anything.

I'm sorry to hear this. I guess his response is understandable, plus he's possibly got a feel for how these new employers are likely to behave towards him if he fronts the exercise.

There is still the option of a collective grievance (all the employees raising it together rather than the supervisor fronting), but I see you think that's unlikely.

Let me know if you do need further info.

 

[2 Hardcore]

I think a big part of the problem here is that only 3 members of staff are full-time - 2 managers and the senior supervisor. All the rest (about 7 of them) are casual/part-timers, and don't seem to think that their collective response would count for much without the backing of at least one f/t member of staff.
There was talk of a few of them going to a store in another city to see if there was any support there, but that idea seems to have fizzled out too.

 

[1927]

If you can find me one employer that has lost over a policy of having a dress code that requires people dealing directly with the public to have no piercings ( a ring in each ear excepted) or tattoos visible whilst at work I will be very surprised. It is more or less a standard requirement.

ffs Toby it aint about whetehr the policy is legal or not,its about whether they can impose a policy where none existed previously,how many fucking times!

 

[tobyjug]

ffs Toby it aint about whetehr the policy is legal or not,its about whether they can impose a policy where none existed previously,how many fucking times!

Short answer yes they can, live with it.