• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • Elena Elsam
    • David Jones
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Harmonising Terms under TUPE

27th September 2012/in News /by Nicola Brown

We are frequently asked to advise on how an employer who has inherited staff under a TUPE transfer can change their terms so as to bring them into line with their existing workforce – or how long they have to wait before doing so.

When employees transfer to a new employer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), they transfer to the new employer on their existing terms of employment.  The new employer may not change those terms if the change in terms is connected to the transfer – any attempt to do so is void, and any dismissal related that is automatically unfair.  The exception to this is where the employer can show that the change in terms is related to what is known as an economic, technical or organisational reason entailing a change in the numbers or functions of the workforce (an ETO reason).

Harmonising terms between the newly inherited staff and existing employees is not an easy thing to do, but there are some things which will help.  For example, leaving any change until a period has passed from the transfer will make it more difficult for the employees to claim that the change in terms was related to the transfer. However, the passage of time will not in itself mean that a change cannot be connected to the transfer.  This was illustrated by a Court of Appeal case a few years ago where it was successfully argued that a proposed change in terms following a transfer 13 years earlier (under the previous 1981 version of TUPE) could still be connected to the transfer.  Another solution might be to change the terms of all employees, not just those who transferred, as this will make it harder to show that the change was connected to the transfer.

The recent case of Manchester College v Hazel  in the Employment Appeal Tribunal (EAT) illustrated the difficulty which employers can face. In that case, Manchester College successfully bid for Offender Learning contracts from the Learning and Skills Council. The Claimants were employed by the Learning and Skills Council and transferred to Manchester College under TUPE.

After the transfer Manchester College discovered that there were hidden costs which they had not appreciated in the due diligence exercise prior to the transfer. The college began a process of costs savings, which included a request for 300 voluntary redundancies. Following this, the college decided to make further savings by harmonising terms and conditions across the 37 different contracts of employment which it had inherited. The Claimants were asked to agree to salary reductions. They objected, and were dismissed by the college, but they were also offered employment on the new terms which the college wanted to impose. They accepted the new contracts, continued in employment and brought claims for unfair dismissal.

The Employment Tribunal and the EAT both found that the reason for the change was connected to the transfer and that, although there had been a reduction in the workforce due to the voluntary redundancy programme, that programme had ended and the employer’s aims in dismissing and reemploying was simply to harmonise their terms of employment.  As such, the dismissals were automatically unfair.

In terms of remedy, the Tribunal ordered that the Claimants should be reemployed on their new contracts, but on their old rates of pay.  The EAT agreed and said that this was the only practical way of recognising and addressing the breach of TUPE which had occurred.

As this case illustrates, harmonising terms following a TUPE transfer can be extremely hazardous.  The Government is consulting about changing TUPE to make it more employer friendly, but the detail and timing of any changes is still speculation. In the meantime, employers wanting to change the terms of employment of staff who have transferred to them under TUPE should most certainly seek specialist advice.

TUPE can be a minefield – but we can help. We have experience of advising on all sorts of TUPE transfers, including outsourcing and asset purchases. If you have something you’d like to run past us, please call us on 01243 836840 for a no obligation chat or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg 0 0 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2012-09-27 20:53:262012-09-27 20:53:26Harmonising Terms under TUPE

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • FAQs about COT3s 18th December 2020
  • Can an employer withdraw a notice of redundancy? 18th December 2020
  • Will employers be able to insist that staff have the Covid-19 vaccination? 18th December 2020
  • Furlough over Christmas? 18th December 2020
  • Update – Furlough scheme extended 18th December 2020
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2021

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refuseing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only