How to avoid falling foul of the law on harmonising contractual terms and conditions following a TUPE transfer

Author: Peter Etherington

Summary

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• Understand that varying the contracts of transferring staff to harmonise them with those of existing employees is unlikely to be valid.
• Be aware of the risks of going ahead with a purported variation of contract.
• Recognise specific circumstances in which variation of terms and conditions in the context of a TUPE transfer will be void.
• If carrying out a restructure following a transfer, consider the pool of employees to be used in any redundancy selection process and consider the terms and conditions on which employees will be offered new posts.
• Consider if there is a contractual right to vary transferring employees' terms and conditions.
• Be aware of when it is possible to vary terms and conditions that are incorporated into transferred employees' contracts from a collective agreement.
• If the transferor is subject to relevant insolvency proceedings, be aware of the rules on variation of terms and conditions following the transfer.
• Consider if varying terms and conditions of existing employees is an option.
• Where groups of employees are on different terms and conditions following the transfer, consider how to manage any employee relations issues.