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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello. Last year you kindly answered my questions regarding

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Last year you kindly answered my questions regarding TUPE. With the information you gave I was able to stall the proposed changes the management wanted to put in place. However on the 1st July a national change to NHS mileage rates came into force and I fear this is being used to again overrule the TUPE agreement. I contacted management on Monday to confirm that the agreement will remain unchanged , despite the changes, for the remainder of the agreed term. They have advised that this is a change not linked to my TUPE transfer so the changes apply from 1st July as per the national agreement. If this is the case then the TUPE agreement is now worthless. Can they use this change to get out of their TUPE responsibilities? Your advice would be most welcome. Geoff.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. You say this is a national change - would it apply to all NHS employers?


Yes it would, assuming they have staff who have need to claim for mileage allowance.

Ben Jones :

As far as TUPE protection goes, changes to an employee's contract is unlawful if the reason for the changes is the TUPE transfer itself or a reason connected to the transfer.


It is possible under regulation 4(5) of TUPE to make changes to employment terms before or after a transfer where the sole or principal reason is either:

  • A reason unconnected with the transfer.

  • A reason connected with the transfer which is an economic, technical or organisational (ETO) reason.


So TUPE does not provide a bulletproof defence against contractual changes. Exceptions are allowed as long as the employer can show that they were for one of the allowed reasons mentioned above.


In this case, this is a nation-wide change which is going to affect all NHS employers and it is likely that they can justify that it was a reason which is unconnected with the transfer. Even if that is not the case it is still possible to potentially try and include it in the ETO reason exception.


Of course if you want to challenge this you may do so but you will have to take this to the employment tribunal and convince them that the changes were actually linked to the transfer. This may not necessarily be easy in the circumstances.

Ben Jones :

I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

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