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The effect of TUPE on terms and conditions
A TUPE transfer treats an employee’s existing contract of employment and all its terms (excluding pension rights) as if it had been made with the new employer (the transferee). Continuity of service is preserved and runs from the date employment began with the old employer (the transferor).
Contractual redundancy terms can transfer (Lansing Linde Severnside v Spiers EAT/1490/01. (See also Solectron Scotland v Roper and others [2004] IRLR 4)).
However, TUPE does not allow transferring employees to demand the more favourable terms that may be enjoyed by the transferee’s workforce. For example:
Ms Jackson transferred into a company where existing employees benefited from an enhanced redundancy scheme. She was made redundant by the new employer. A tribunal confirmed she had no right to enhanced redundancy pay because it had never been a part of her employment contract with her old employer.
Jackson v Computershare Investor Services PLC [2007] EWCA Civ 1065
Under regulation 4 of TUPE, all the employer’s rights, duties and liabilities under the contract of employment transfer automatically to the new employer. These include, for example, 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 claim to the tribunal is brought against the correct employer. Criminal liability does not transfer.