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, see below. Continuity of service is preserved and runs from the date employment began with the old employer.

Contractual redundancy terms can transfer (Lansing Linde Severnside v Spiers EAT/1490/01, Solectron Scotland v Roper and others [2004] IRLR 4). It makes no difference that those terms are based on custom and practice (see page 82).

TUPE protects an employee’s existing rights. It does not enable them to claim better rights where these 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.

Regulation 4 of TUPE limits the changes that can be made to employees’ terms and conditions after a transfer. Important changes have been made to regulation 4 by the 2014 Regulations. These changes are outlined on pages 380-383. They affect all contract changes where the transfer took place on or after 31 January 2014.