Other changes to regulation 4 of TUPE

Express contract terms

Under regulation 4(5)(b) of TUPE as amended, TUPE no longer prevents an employer making changes under an express contract term, even if the reason for the change is the transfer. Any express term must be clear and unambiguous and must have been agreed. If an express variation clause is inserted into contract terms in order to make changes under a forthcoming TUPE transfer, that term, and those changes, will be void as a breach of the Acquired Rights Directive (BIS TUPE Guidance, 2014).

In particular, union reps should note that under new regulation 4(5A), transferees can now rely on express mobility clauses to enforce post-transfer changes in location, as long as the term complies with all the normal requirements of general contract law (see Chapter 3, page 80). A change in the workplace after the transfer can now be a potentially fair reason for dismissal of the transferring workforce. Eligible employees will be entitled to a redundancy payment.