Following a TUPE transfer, is the transferee bound by changes to a collective agreement that are agreed after the transfer between the union and the transferor?
No. Where the contracts of employment of transferring employees incorporate provisions of a collective agreement, the transferee is bound by the terms and conditions in place at the time of the transfer, but not by any subsequent changes to the collective agreement, or new collective agreements, agreed between the union and the transferor after the transfer, where the transferee does not participate in the negotiations.
This static approach to the transfer of terms and conditions deriving from collective agreements was set out by the European Court of Justice in Alemo-Herron and others v Parkwood Leisure Ltd Case C-426/11 ECJ. The position is confirmed by reg.4A of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).