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Beneficial contractual change rules in TUPE transfers enforceable

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The Employment Appeal Tribunal (EAT) has handed down a decision relating to changes of contract under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE).

The question was whether it was possible for an employee to enforce a change to his terms and conditions that had been made following a TUPE transfer. His employer claimed it was not because the change to the contract was made as part of a transfer and was therefore void.

Now the EAT has said that when a contractual change is beneficial to employees, they can enforce them.

The case itself Power v Regent Security Services involved changes to the claimant’s retirement age which would now be decided under the Age Discrimination regulations rather than TUPE.

But its lasting effect – and the important point for employers – is its effect on the principles surrounding the rules in relation to TUPE transfers. Employees can now challenge new terms which they consider detrimental, even if the overall package of terms and conditions is in their favour, plus they can enforce a change made due to the transfer which they consider to be beneficial.

The presiding judge, Sir Patrick Elias, said: “It seems to us that it would be inconsistent with the aim of protecting the workforce to refuse them benefits contractually conferred by the transferee.

“The principle is that they should not be prejudiced as a result of the transfer, and yet if they were barred from enforcing more favourable terms, that would be the effect.”

Ultimately, the message is clear – if you’re going through a TUPE transfer, check with your legal advisor.

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