Varying TUPE terms checklist

Use our varying TUPE terms checklist to help identify if the variation you are seeking to impose is permissible. 

When TUPE applies

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a relevant transfer of an undertaking takes place, those employees who are employed by the transferor employer, e.g. the seller of the business, immediately before the transfer automatically become the employees of the transferee employer, e.g. the buyer of the business, from the time of the relevant transfer, on the same terms and conditions of employment that they previously enjoyed with the transferor employer. The exception is that special rules apply to the transfer of occupational pension scheme rights.

Varying terms

If the transfer is not the sole or principal reason for the variation it will be permitted, subject to the normal rules on varying contracts of employment.  However, there are only limited situations when a transferee employer is otherwise permitted to vary the contracts of employment of transferred employees.  In broad terms transfer-related contractual variations are only allowed if:

• the sole or principal reason for the change is an ETO reason (i.e. the variation is an “economic, technical or organisational” reason entailing changes in the workforce)
• the variation is allowed by the terms of the contract (for example to a term which allows for a mobility clause to be varied to refer to the new employer's site(s))
• they are after one year in relation to collectively agreed terms provided that, following the variation, the terms are no less favourable to the employee "when considered together" than those which applied immediately before the variation.