How long are terms protected?

For transfers that took place before 31 January 2014, there is no time limit to the protection provided to terms and conditions under TUPE. For all transfers after that date, the position is different where the contract term has been incorporated from a collective agreement (see page 381).

In all cases, the more time that passes following the transfer, the more difficult it will be to show that the transfer was the reason for any contractual change. Over time, an employer can point to reasons unrelated to the transfer, for example difficult economic conditions, or a promotion, a mistake (Smith v Trustees of Brooklands College [2011] UKEAT/00128/11), a desire to reorganise functions or even simply a plan to improve efficiency and performance (Enterprise Management Services Limited v Dance [2011] UKEAT 0200/11/2109) to justify making changes to contract terms.