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Home > Resources > HR compliance > Contracts of employment > Harmonising terms and conditions following a TUPE transfer
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Harmonising terms and conditions following a TUPE transfer

A guide explaining the legal risks of harmonising terms and conditions following a TUPE transfer, including when variations will be void and when changes may be lawful.

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By Peter Etherington

Where there is a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE), the contracts of employment of employees assigned to the transferring entity move with it to the new employer (the transferee). In general, the employees retain the terms and conditions that applied under their employment contract with the old employer (the transferor), and they retain their continuous service acquired with the transferor.

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  • Risks arising from harmonising terms and conditions following a TUPE transfer
  • Circumstances where changes to terms and conditions will be void
    • Employees’ consent to variation
    • Variations resulting in the overall package being more beneficial
    • Custom and practice and implied consent
    • Varying the terms and conditions of transferring staff sometime after the transfer has taken place
    • Variation by the transferor in advance of the transfer
  • Circumstances in which a variation of terms and conditions can be valid
    • Harmonisation of terms and conditions as part of a restructure
    • Variation as allowed under the contract of employment
    • Variation of terms derived from collective agreements
    • Pension schemes
    • Insolvency of the transferor
    • Variation of existing employees’ terms and conditions
    • Variation that is not because of the transfer
  • Managing employee relations issues if it is not possible to harmonise terms and conditions of employment

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About the author

Peter Etherington

Peter Etherington is an employment law associate with Kate Shepherd Associates. He is a senior HR professional and has a master’s degree in human resource management from De Montfort University and a LLM in employment law from the University of Leicester.

Peter is experienced in dealing with a wide range of employment and practical HR issues. His experience includes redundancy (collective and smaller scale), departmental restructures, TUPE, negotiating new terms and conditions with staff, management of complex disciplinary and grievance cases, performance management, absence management, tribunal representation, and writing policies and procedures.

Kate Shepherd Associates regularly trains and advises a wide array of employers from SMEs through to PLCs, charities and multinational companies. They also operate at a strategic level, develop and implement policies and sit on the board of directors for clients.

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