Under TUPE, Can My Terms and Conditions be Changed?

Author:
Stephen Pinder
Partner, Employment Law Solicitor
Date:
06/12/2019

It really does depend. Your new employer cannot change your terms and conditions to harmonise them with their existing staff. But, if your employer can show that there is an Economic, Technical or Organisational reason to change your Terms and conditions, these changes may be allowed under TUPE.

Let’s have a look at the TUPE rules so we can make this clearer.

TUPE Explained

TUPE is short for Transfer of Undertakings (Protection of Employment) Regulations 2006. TUPE applies when a business or part of a business is sold and includes transfers of contracts to another contractor.

All employees in the existing business transfer over to the new employer on completion of the sale or start of the new contract. TUPE was put in place to protect employees who were affected by the sale of a business and means that restrictions are put on the new employer which stop them from doing certain things once they own the business.

These restrictions include:

  • Not being allowed to dismiss someone for any reason related to a TUPE transfer
  • Not being allowed to change staff terms and conditions if the change is related to the TUPE transfer.

As an employee, your holiday entitlement is also protected, along with any collective agreements made previously. You’ll also keep your period of continuous employment, even though you’ve been transferred over to a new employer.

If your new employer does not meet the terms of your contract, this may well be a breach of an employment contract.

If you are dismissed because of a TUPE related reason, your dismissal is automatically unfair and you can make an unfair dismissal claim at an Employment Tribunal.

Terms and Conditions Changes because of TUPE

As mentioned before, your new employer cannot change your terms and conditions of employment because of TUPE.

This includes your existing employer making changes to your contract of employment before the TUPE transfer.

The new employer may want to bring all their staff onto the same terms and conditions to make management easier for them and harmonise the contracts so there is no ill feeling between workers on less favourable conditions.

But this is not a valid reason under TUPE for changing the terms and conditions in your contract of employment.

The only way that your new employer can harmonise the terms and conditions of everyone in the business is to enhance them. This can include an increase in annual leave for example. You should note that your new employer still has to get agreement for these changes even if they are positive changes. They will do this by either getting agreement from the employees or discussing with employee or Trade Union representatives.

There are reasons why your new employer can change your terms and conditions after the TUPE transfer though. If the reason for the change in your terms are Economic, Technical or Organisational (ETO), then changes can be made.

  • Economic reasons are about how the company has been performing
  • Technical reasons are about the processes or equipment used by the company
  • Organisational reasons are to do with the structure of the business.

Your new employer can use these areas to make changes to your terms and conditions of employment, but you, as the employee will need to agree with the change/s.

In addition, your new employer can also make redundancies in the workforce because of ETO reasons, but they must follow the correct consultation periods and notice periods.

If you are unsure whether you’ve been treated fairly and within the TUPE regulations after a transfer, speak to one of our specialist Employment Solicitors who will have a free initial discussion with you. Also ask if we can deal with your claim on a No Win, No Fee basis.

For more information see TUPE for Employees.

For free initial legal advice call our Employment Solicitors

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