Would any collective bargaining agreements be carried over to the transferee on a TUPE transfer?
Unlike in other EU countries, voluntary collective agreements in the UK are generally not legally enforceable unless it is expressly stated otherwise and consequently the provisions that preserve collective agreements in respect of transferring employees have little effect in practice. However, terms from a collective agreement that are incorporated either expressly or impliedly into transferring employees' contracts will be preserved. This includes the method of calculating employees' pay and any formula for determining pay increases.
The TUPE Regulations 2006 allow employers to vary terms that are incorporated into employees' contracts from a collective agreement, where such a variation would otherwise be void under TUPE, provided that:
- the variation takes effect more than one year after the transfer; and
- following the variation, the terms and conditions are no less favourable overall to the employee.