The effect of TUPE on terms and conditions 




A TUPE transfer treats an employee’s existing contract of employment as if it had been made with the new employer, who essentially steps into the shoes of the old employer. There is an important exception relating to pensions, explained below.


Where employment transfers under TUPE, continuity of employment is preserved and runs from the start date of the employment with the old employer.




TUPE protects the employee’s existing rights but it does not provide a right to any better terms and conditions enjoyed by the transferee’s workforce. For example, if the new workforce has better contractual redundancy rights, or a more generous allocation of annual leave, TUPE does not give the transferring employees access to those better terms (Jackson v Computershare Investor Services PLC [2007] EWCA Civ 1065).




Under regulation 4, TUPE, all rights, duties and liabilities under the contract of employment transfer automatically to the new employer, including liability for acts of discrimination or 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. 




All contractual rights transfer, including any based on custom and practice (Solectron Scotland v Roper and others [2004] IRLR 4). 




Regulation 4 of TUPE limits a new employer’s freedom to change terms and conditions following a transfer. This aspect of TUPE changed in important ways when the law was amended in January 2014 (see pages 442-446). The changes are designed to make it easier for employers to change contract terms after a transfer. These changes do not apply in Northern Ireland.