Express contract terms that permit change 



If the employment contract contains a valid written contract term that allows the employer to impose unilateral contract changes, the employer can rely on that term to impose contract change, even if the reason for making the change is the transfer (regulation 4(5)(b), TUPE, amended by regulation 6(1), CRTUPEAR 14). 



This kind of contract term must always be interpreted narrowly (see Chapter 3, page 84).



An employer that relies on an express contract term to make unilateral changes after a transfer risks a claim under regulation 4(9), TUPE if a transfer results in a substantial worsening of working conditions (see page 462). “Working conditions” is not limited to contract terms and conditions.


In addition, if this kind of term was added to the written contract terms to make it easier to impose change under a future transfer, both the term and the changes are likely to be void as a breach of TUPE (See BIS TUPE Guidance, 2014 (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/275252/bis-14-502-employment-rights-on-the-transfer-of-an-undertaking.pdf).