Interaction Between TUPE, SMP and Annual Leave

Interaction Between TUPE, SMP and Annual Leave

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One of my payroll clients has a rather unusual circumstance, in respect of one employee.

Simply a business acquired another business and it is most certainly the case that TUPE applied on that business acquisition. One of the acquired employees was already on Maternity Leave at the date of the transfer. Not only that she had already been paid the six weeks of SMP based upon her salary, and thus had started to be paid at the fixed weekly rate.

Thus it will be seen that her new employer has only ever paid SMP at the fixed weekly rate. Her entitlement to that then runs out, and then by arrangement she takes two weeks Annual Leave, before actually returning to work.

Obviously she is entitled to be paid her Holiday Pay. The question is at what rate should she be paid? Given this employer has only ever paid her at the SMP fixed weekly rate, is that what she should be paid? Or does she have an entitlement based upon what she was being paid prior to going on Maternity Leave at the pre-TUPE transfer employer?  

Comments would be appreciated.

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By Peter Kilvington
24th Jul 2015 13:41

Look at the contract

I would imagine she is due her contractual rate.  She is still in the same employment that's the whole point of TUPE from her point of view "this employer" and the old employer are one and the same.

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By Michael Beaver
24th Jul 2015 18:03

Peter is right

Her contractual entitlements carry over from the previous employer, so she would be entitled to holiday at her contractual salary rate (plus loading if it applies).

 

 

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