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Changes for a reason unconnected to the transfer
[ch 12: pages 445-446 ]Contract changes for reasons unconnected to a TUPE transfer have always been allowed, although they must be agreed, just like any normal contract change (see Chapter 3). For example:
Mr Barry was transferred to the private sector from an NHS Trust on Whitley Council terms, which included an enhanced redundancy payment. His new employer promoted him and gave him new contract terms including a pay rise. However, his new contract terms provided only statutory redundancy pay. When he was eventually made redundant, he claimed an enhanced redundancy payment, His claim failed because his original contract had been varied for a reason unconnected to the transfer, namely his promotion. He was no longer entitled to the enhanced redundancy payment.
Barry v Bateman Catering [2002] UKEAT1515/00/1204
In Smith v Trustees of Brooklands College [2011] UKEAT/00128/11, the incoming employer could justify a cut in the wages of part-time staff because their HR manager mistakenly believed that they had been getting paid too much by their previous employer due to an error. This mistaken belief was a reason unconnected to the transfer, so there was no breach of TUPE.
TUPE only gives transferring employees the same rights as they had under their original employment contract — not better rights. For example, contract terms that were discretionary under the old employer remain discretionary after the transfer. The same applies to non-contractual working practices. However, under regulation 4(9), TUPE, it is possible to resign and claim automatically unfair dismissal where a TUPE transfer results (or would result) in a substantial and materially detrimental change to both contract terms and non-contractual working practices (see page 424).