Variation of terms and transfers

Produced by Tolley in association with Dr John McMullen, Partner, Stone King LLP and Visiting Professor of Law, Durham University

The following Employment Tax guidance note Produced by Tolley in association with Dr John McMullen, Partner, Stone King LLP and Visiting Professor of Law, Durham University provides comprehensive and up to date tax information covering:

  • Variation of terms and transfers
  • Changing employment arrangements
  • Changes which are void, even with employee consent
  • Economic, technical or organisational (ETO) reason
  • Entailing changes in the workforce
  • Changes which may be valid with employee consent
  • The harmonisation problem
  • Timing of changes
  • Beneficial changes
  • Possible solutions when seeking to implement consensual variations
  • More...

Changing employment arrangements

Changing an employee’s employment arrangements as part of a TUPE transfer 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. Such flexibility can be used in the same way following a TUPE transfer as in other situations with no contractual variation. However, it should be borne in mind that TUPE allows an employee to resign and claim constructive dismissal where there is a ‘substantial change in working conditions’ to the employee’s material detriment. ‘Working conditions’ here includes non-contractual conditions.

Further, there will be information and consultation obligations under TUPE to the extent that the proposed changes to employment arrangements constitute ‘measures’. The definition of 'measures' in relation to TUPE is relatively broad and includes any changes that were not an inevitable consequence of the transfer. Following a decision by the EAT, the key question an employer should ask itself when attempting to determine whether a change constitutes a measure is, 'does the change have the potential for causing concern amongst the employees?' In Institution of Professional Civil Servants V Secretary of State for Defence [1987] IRLR 373, the High Court described ‘measures’ as ‘a word of the widest import’. It can catch any action, step, or arrangement envisaged by the employer.

In a non-TUPE situation where a change in employment arrangements involves a contractual change, common law requires:

  1. consent from that employee

  2. consent from recognised trade unions where terms are collectively bargained

  3. a valid consideration for the change

Consideration for a consensual change is usually given simply by the continuation of the employment relationship (although whether this does in fact represent consideration will depend on all the circumstances), or an incentive for consent is often provided in the form of a pay rise or one-off bonus.

In contrast, in the context of a TUPE transfer, varying contractual terms is not as simple as merely seeking

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