Government attitudes to Europe and TUPE

The current coalition government would like to do even more to make it easier for incoming employers to change contract terms after a transfer, but it is held back by the Acquired Rights Directive, which bans “harmonisation” or “standardisation” of contract terms. “Harmonisation” is the word used to describe what happens where the terms and conditions of one group of workers are changed simply so as to bring them into line with those of another group following a transfer, and for no other reason. Harmonisation is unlawful because it does not “entail changes to the workforce” (London Metropolitan University v Sackur & others [2006] UKEAT 0286/06/1708). Attempts at harmonisation are void.

However, in practice, the 2014 Regulations will make it more difficult to resist some harmonisation of terms “incorporated from a collective agreement”, by introducing a lower level of protection for these terms. Collective terms will be able to be re-negotiated one year after the transfer date, as long as the resulting contract terms, when taken as a whole, are “no less favourable overall”. This change to the law is discussed on page 58.

The government intends to continue pressing for changes to the Directive to make it easier to change all contract terms on a transfer. In its Consultation response on TUPE published in September 2013, it promises to “engage with European partners to demonstrate the potential benefits of a harmonisation framework for individuals and the economy.”