![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201905.jpg)
The effect of TUPE on terms and conditions
[ch 12: pages 451-452]A TUPE transfer treats an employee’s existing contract of employment as if it was made with the new employer, who essentially steps into the shoes of the old employer. There is an important exception relating to pensions, explained below.
Where employment transfers under TUPE, continuity of employment is preserved and runs from the start date of the employment with the old employer.
TUPE protects the employee’s existing rights but it does not provide a right to any better terms and conditions enjoyed by the transferee’s workforce. For example, if the new workforce has better contractual redundancy rights or a more generous allocation of annual leave, TUPE does not give the transferring employees access to those better terms (Jackson v Computershare Investor Services PLC [2007] EWCA Civ 1065).
TUPE can apply where a UK-based employer transfers jobs out of the UK, even to a non-EU country (Hollis Metal Industries Ltd v GMB & another [2008] IRLR 187). However, most employees will not be able to rely on TUPE to insist on relocating overseas on their existing UK pay and conditions:
Mr Zeb’s contractual place of work was Wakefield. To cut costs, Xerox transferred its finance department to the Philippines where local wages were ten times lower than in the UK. Xerox declared redundancies, on the basis that the need for finance staff in Wakefield had ceased and those affected were offered enhanced redundancy. Xerox also offered roles in the Philippines, but only on local wages. Zeb said he wanted to transfer to the Philippines on his UK salary.
The EAT ruled that Zeb’s contractual right under TUPE was to continue working for the same salary in Wakefield. He had no right to insist on a change in his work location (to the Philippines) while retaining his UK salary. Since there was no longer work for him in Wakefield, he was fairly dismissed for redundancy under regulation 7, TUPE.
Xerox Business Services Philippines v Zeb [2017] UKEAT/0121/16/DM
Under regulation 4, TUPE, all rights, duties and liabilities under the contract of employment transfer automatically to the new employer, including liability for acts of discrimination or 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 any that are based on custom and practice (Solectron Scotland v Roper and others [2004] IRLR 4).
Regulation 4, TUPE limits a new employer’s freedom to change terms and conditions following a transfer. This aspect of TUPE changed in important ways when the law was amended in January 2014 (see pages 458-460). These changes are designed to make it easier for employers to change contract terms after a transfer. They do not apply in Northern Ireland.