Harmonisation and Tupe

Many employers are tussling with the difficulty of how to
harmonise terms and conditions of employment for staff who join the company or
group as a result of a Tupe transfer.

The current legal position is that changes in terms and
conditions of employment, even if agreed to by the individuals concerned, are
void if they are made in connection with a Tupe transfer.

The only way around this is for a dismissal to take place,
with subsequent agreement as to new terms (a rather draconian procedure) or for
the employer to have a valid argument that the changes are not, in fact,
connected with the transfer in any way. It is often assumed that once six
months have elapsed after any transfer, the employer has a relatively free hand
to agree new terms and conditions with the relevant employee. This is not,
however, the case.

The latest legal position

The EAT has recently confirmed that if there is a clear
connection between a proposed change to an employee’s terms and conditions and
the Tupe transfer. This means that such changes are void even if they occur a
long time after the transfer.

In the recent Taylor case, (case ref?) two years had passed
from the transfer date. Here, the employer was insisting on proposed changes to
the employee’s terms and conditions, and the employee refused to accept those.
His consequent dismissal was deemed to be automatically unfair under the Tupe
regulations. The EAT re-emphasised the point that although a connection with
the transfer will be more difficult to show, where a significant amount of time
has elapsed between the Tupe transfer and the proposed change, that issue in
itself is not conclusive. The passage of time, it said, merely opens up greater
opportunities for intervening events to occur which break the chain of
causation.

In
these situations, employers often take the view that where the vast majority of
employees have agreed to changes in terms and conditions, this will mean that
one individual will find it difficult to refuse to do so. In a second case
concerning Tupe and this issue, Rossiter, the EAT made it clear that the rights
conferred by Tupe not to have one’s standard conditions changed are individual
rights, and continue to apply notwithstanding the fact that others may have
purportedly waived them. In other words, where there is still an argument that
any changes are connected with the Tupe transfer, any individual may refuse to
agree to such changes, even though most of his or her colleagues are prepared to
agree to them.

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