Employment Tax

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
  • 21 Dec 2021 16:41

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...

Variation of terms and transfers

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

Access this article and thousands of others like it
free for 7 days with a trial of TolleyGuidance.

Think Tax.
Think Tolley.

Critical, comprehensive and up-to-date tax information


Popular Articles

Withholding tax

IntroductionUK tax must be withheld on UK payments including:•interest•royalties•rental incomeUK withholding tax may be reduced under the provisions of a double tax treaty (DTT). Prior to 1 June 2021, payments of interest and royalties made to EU resident associated companies were also exempt from

22 Dec 2021 16:12 | Produced by Tolley in association with Anne Fairpo Read more Read more

Structures and buildings allowance

What is structures and buildings allowance (SBA)?From 29 October 2018, expenditure on constructing a non-residential building or structure, or in certain cases, expenditure on acquiring such a building or structure, qualifies for an SBA. The following note has been updated for the changes announced

05 Jan 2022 14:50 | Produced by Tolley Read more Read more

Losses on shares set against income

Usually, allowable capital losses can only be set against chargeable gains. If the losses are not fully utilised against gains in the year in which they arise, the excess is carried forward to use against future gains. See the Use of capital losses guidance note for further details.This rule can be

04 Jan 2022 11:11 | Produced by Tolley Read more Read more