Changes permitted by an express contract term

In England, Scotland and Wales, if the employment contracts of transferring employees include an express (written) contract term allowing unilateral changes to the contract, the employer (transferor or transferee) can rely on this term to make changes even if the changes are due to the transfer (Regulation 4(5)(b), TUPE, as amended).

As the 2014 BEIS TUPE guidance makes clear, if an employer adds this kind of term to the employment contract when preparing for a transfer with a view to making it easier to change contract terms (and there is no valid ETO reason), the term itself will be void as a breach of TUPE.

For information on how courts and tribunals interpret this kind of express contract term, see LRD’s annual employment law guide, Law at Work (www.lrdpublications.org.uk/lawatwork).