TUPE—variation of contract terms
Produced in partnership with Gowling WLG
TUPE—variation of contract terms

The following Employment guidance note Produced in partnership with Gowling WLG provides comprehensive and up to date legal information covering:

  • TUPE—variation of contract terms
  • Changing employment arrangements
  • Contractual variations which are void, even with employee consent
  • Contractual variations which may be valid, with employee consent
  • Variation of terms and conditions incorporated from a collective agreement
  • The harmonisation problem
  • Timing of changes
  • Beneficial changes
  • Possible solutions when seeking to implement consensual variations
  • Background to the 2014 amendments

This Practice Note details the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) on the ability to vary or change terms and conditions of employment.

See Practice Note: TUPE—the pre-January 2014 position—Variation of contract terms for information on the position for cases where:

  1. the relevant transfer under transfer took place before 31 January 2014, or

  2. the purported variation was agreed before 31 January 2014 (or, in a case where the purported variation was not agreed, it started to have effect before that date)

Changing employment arrangements

Changing an employee’s employment arrangements does not always involve a change in the employee’s terms and conditions. The contract may already include inherent flexibility, such as a right for the employer to change duties, which can be used in the same way following a relevant transfer under TUPE 2006 as in other situations (see Practice Notes: Changing terms and conditions of employment and Duties—Changing a role or job title). In these circumstances there is no contractual variation. However, there will be information and consultation obligations under TUPE to the extent that the proposed changes to employment arrangements constitute ‘measures’ (see Practice Note: TUPE—information and consultation—Measures).

Where a change in employment arrangements does involve a contractual change, common law requires that the employee (or, where terms are collectively bargained, recognised