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 Tup