The effect of TUPE on terms and conditions

A TUPE transfer treats an employee’s existing contract of employment and all its terms as if it had been made in the first place with the new employer. (There is an important exception relating to pensions, explained below). Continuity of service is preserved and runs from the date employment began with the old employer.

TUPE protects an employee’s existing rights. It does not enable them to claim any better rights that are already enjoyed by the transferee’s workforce (Jackson v Computershare Investor Services PLC [2007] EWCA Civ 1065).

Under regulation 4 of TUPE, all rights, duties and liabilities under the contract of employment transfer automatically to the new employer, including liability for acts of discrimination or for personal injury. The law behaves as if these acts were done by the new employer. Advice should be taken to make sure any tribunal claim is issued against the correct employer. Criminal liability does not transfer.

All contractual rights transfer, including those based on custom and practice (Solectron Scotland v Roper and others [2004] IRLR 4).

Regulation 4 of TUPE limits a new employer’s freedom to change terms and conditions after a transfer. Important changes were made to regulation 4 by the last government in 2014. These changes, outlined on pages 397-400, are designed to make it much easier for employers to change contract terms after a transfer. They affect all contract changes where the transfer took place on or after 31 January 2014.