Can an employer harmonise the contracts of TUPE transferred employees with those of its existing workforce where the changes will be beneficial to them?

From a legal point of view, the fact that changes to the contracts of TUPE transferred employees will be beneficial to the employees does not in itself mean that they will not be transfer related and void. However, in Regent Security Services Ltd v Power [2008] IRLR 66 CA, the Court of Appeal held that to prevent an employee from relying on a beneficial change would be inconsistent with the principle behind TUPE, which is to protect employees from being prejudiced by a transfer. This case was decided under the repealed 1981 TUPE Regulations, which make no specific mention of changing terms and conditions for reasons relating to the transfer, whereas the 2006 Regulations now in force expressly provide that a change will be void where the sole or principal reason for the variation is the transfer itself, and it is not an economic, technical or organisational reason (an ETO reason) entailing changes in the workforce. It is not known how the courts will interpret this wording in relation to a beneficial change, but it is possible that a case under the 2006 Regulations would be decided differently to Regent Security Services Ltd v Power.

From a practical point of view, there is clearly much less risk of claims being brought if the changes are of benefit to the employees.