TUPE protection – a year or longer?

Managing TUPE transfers is something that causes many HR practitioners to groan. It’s complicated (often disproportionately so, for transfers that could actually be handled very simply), and is something most don’t handle often enough to be completely confident of all the requirements, which means that when it comes up, a bit of revision is needed!

Something most are familiar with is the fact that TUPE protects transferring employees’ terms and conditions. But managing employees on two (or sometimes more) sets of terms and conditions is challenging, so how long does this actually last?

One of the many employment law myths that persist in doing the rounds is that TUPE protection only lasts a year, after which it is possible to change transferring employees’ terms. In fact that’s not the case at all. The myth probably arises from the separate provisions for collective agreements. If there are transferred employees who are on terms and conditions agreed as part of a collective agreement, those are specifically protected for a year.

However, ‘normal’ terms and conditions don’t have any time limit on it at all, meaning TUPE protection is effectively indefinite. There is no point at which it is ok to ‘harmonise’ contracts and move staff on to the same terms and conditions as the rest of the workforce.

That doesn’t mean no changes can ever be made, but it does mean changes can’t be made because of the transfer. Seeking to ‘harmonise’ contracts automatically points to a transfer as being the reason, so would be unlawful. The administrative burden of having employees on more than one contract is just something organisations need to deal with, at least for a while.

However, the indefinite protection from changing terms and conditions because of TUPE  doesn’t stop you changing them for other reasons, so if there is a good business justification for a change, and you consult and seek agreement as you normally would, it’s no harder to changed transferred terms than it is those your existing workforce have.

Obviously the more distance you can place between the transfer and the change, the easier it is to demonstrate that the reasoning is nothing to do with the transfer itself.

Alternatively, if you really need to bring in change sooner, salary review time is often a good opportunity, offering enhanced pay in exchange for a new contract, or at the point of any optional role changes such as promotions or internal moves.

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