Significant changes to job roles or duties

Significant changes to job roles or duties can amount to an economic or organisational reason “entailing changes in the workforce”, but only if the change in duties directly affects the employee whose contractual pay and benefits are being downgraded. For example, in Nationwide Building Society v Benn [2010] UKEAT/0273/09, the transferee, Nationwide, cut the contractual bonus of new managers joining them after a TUPE transfer from the Portman building society. The bank’s intention was to bring bonus payments into line with the less generous bonuses it paid to its existing staff. It was able to justify the bonus cut under TUPE by pointing to an organisational reason “entailing changes to the workforce”. This was the fact that since Nationwide sold a more limited, cheaper range of financial products than the Portman, the duties of the transferring sales force would be fundamentally different following the transfer, justifying a lower bonus.

In practice, it is increasingly easy for employers to avoid TUPE by arguing that transfer-related changes were as a result of an ETO reason entailing changes to the workforce. In the following example, the employer was allowed to justify harmonisation as an incidental by-product of its desire to improve efficiency and productivity: