Express contract terms that permit change

For all transfers on or after 31 January 2014, where the employment contract of a transferring employee already contains an express contract term permitting change, that express contract term can be relied on to make changes to contract terms even if the reason for the change is the transfer (regulation 4(5)(b) TUPE). These terms are sometimes called flexibility terms (see Chapter 3, pages 68 and 79).

In particular, express mobility clauses can now be used to enforce a post-transfer change in location (new regulation 4(5A), TUPE). A change in work location as a result of a transfer is no longer automatically unfair (see page 385). The law on mobility clauses is explained on page 67.

When dealing with express terms of this kind, reps should remember some basic principles. In particular:

• tribunals should regard this kind of term as “unusual”. The language used must be very clear. Any vague language should be interpreted restrictively;

• if an express flexibility term has been inserted into the written contract document to make it easier to make changes under a future transfer, both the term and the changes will be void as a breach of TUPE (BIS TUPE Guidance, 2014).