Variation of terms and transfers

Produced by Tolley in association with

Employment Tax

Guidance

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

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Dr John McMullen

Partner at Stone King LLP , Employment Tax

Dr John McMullen is a Partner at Stone King Solicitors LLP, United Kingdom, and a Visiting Professor of Law at Durham University. He has over 25 years of experience in employment law and is noted as being both a strategic thinker and leader in his field as well as being a practical hands-on lawyer. By peer acclaim he is one of the leading lawyers in the UK with national and international reputation. John is regarded as the leading expert in the UK on Transfer of Undertakings and he also has an international reputation in that field. He is the author of Business Transfers and Employee Rights, the leading work on transfers which also contains a chapter on transfer law and practice in Ireland along with his new book, Redundancy: Law and Practice. As well as being a writer and commentator on Mergers and Acquisitions and out-sourcing he advises the public, private and third sectors on the subject of staff transfers. This includes wide experience in mergers and acquisitions, out-sourcing, franchising and complex re-structuring. An all-round employment advisor, he is an editor of Harvey on Industrial Relations and Employment Law. He is an expert on the contract of employment and corporate governance in relation to employment issues.

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