Time limits

There is no time limit to the right to maintain terms and conditions under TUPE. An employee whose contract terms have transferred from the old employer under TUPE remains entitled to the benefit of those terms until they are lawfully changed. For example, in Taylor v Connex South Eastern EAT/1243/99, a dismissal was automatically unfair because it related to a TUPE transfer that took place two years previously.

However, the more time that passes following the transfer, the harder it becomes to show that the transfer was the sole or principal reason for any contractual change, as opposed to some other unrelated reason such as difficult economic conditions, a promotion (Barry v Bateman Catering [2002] UKEAT1515/00/1204) or even a mistake (Smith v Trustees of Brooklands College [2011] UKEAT/00128/11).

Contract change for a transfer-related reason will be void even if no prospective purchaser has been identified at the time of the change (Spaceright Europe Limited v Baillavoine [2011] EWCA Civ 1565). For example, a wage cut to make a business more attractive to a prospective seller would be void. By contrast, a wage cut for a reason unrelated to the proposed business sale, such as lack of funds would not infringe TUPE, although consent for the change would be needed in the usual way. For TUPE protection to be triggered, a sale does eventually have to materialise (ILAB Facilities Limited v Metcalfe [2013 UKEAT/0224/12/RN).