Changes to individual contract terms



Changes to individual contract terms are void if the sole or main reason for making the changes is the transfer, unless it is a valid economic, technical or organisational (ETO) reason entailing changes to the workforce (regulations 4(4) and 4(5), TUPE, as amended). See page 442.



“Harmonisation” of individual contract terms (cutting pay or other terms and conditions on a transfer simply to bring them into line with those of the employer’s existing workforce) is against the law. This is because there is no valid ETO reason for making this kind of change.


The employer can impose a change on transferring employees if the employment contract already contains a valid express contract term that allows this, whether or not there is an ETO reason (regulation 4(5)(b), TUPE, as amended). This kind of term would need to be very precise.
See also Chapter 3, page 74.


The law allows employees to accept beneficial changes made because of a transfer, even if there is no ETO reason. For example, TUPE does not prevent pay increases, harmonising wages upwards. The 2014 BEIS TUPE guidance says that changes that are “entirely positive from the employee’s perspective” are not prevented by TUPE because the underlying purpose of the ARD is to ensure that employees are not penalised. Changes that employees regard as beneficial and wish to enforce are not void (Power v Regent Services Limited [2007] EWCA Civ 1188).