LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 5

Changes to Regulation 4 by the 2014 Regulations

[ch 5: pages 55-56]

For some time, it seems to have been getting easier for employers to satisfy tribunals that transfer-related change is not a breach of TUPE, by pointing to another reason for change that is either “unrelated” to the transfer, or that can be justified as an economic, technical or organisational reason entailing changes to the workforce. Recent examples include:

• saving money (see, for example, Crystal Palace FC Limited and others v Kavanagh [2013] EWCA 1410);

• correcting a mistake (see, for example, Smith v Trustees of Brooklands College [2011] UKEAT 0128/11/0509); and

• improving performance and efficiency (see, for example, Enterprise Managed Services Limited v Dance [2011] UKEAT 0200/11/2109).

The practical effect of revisions to Regulation 4 by the 2014 Regulations will be to make it even easier for future employers to make changes to terms and conditions on a TUPE transfer, and to give employers increased confidence in their ability to get away with contract change after a transfer.