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If TUPE applies to a transfer, then the transferring employees will move to the new employer on the same terms they were employed under just before the transfer. Simply put, the new employer will 'step into the shoes' of their old employer. This means the employees will preserve their continuous service with the employer and can expect to transfer their contractual terms and conditions over.
The new employer may sometimes wish to try and change the transferring employees’ terms and conditions of employment. However, under Regulation 4(4) of TUPE any such changes are void, unless the employer can show they were in no way connected to the transfer or if they were required for an economic, technical or organisational reason (ETO reason).
Some employers may try and justify changes by arguing that they are needed due to harmonisation and therefore rely on an ETO reason. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend one’s terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such a change in the workforce so harmonisation is unlikely to be used as a justifiable reason.
If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective.
It is for the employer to prove that a proposed change is permissible under TUPE and if there are concerns that the changes cannot be made, this can be challenged by raising a formal grievance first and then considering making a claim in an employment tribunal.
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