Benefits after transfer

Q. A company is trying to cut back on the benefits of staff who were TUPE transferred to it a few months ago. Can they do this?

A. The terms and conditions of employees who have been TUPE transferred cannot normally be changed unless the employer has an economic, technical or organisational (ETO) reason. The only occasion where courts have found that an ETO reason is valid justification for changes, is where they affect the whole workforce.

For example, where the changes need to be made to the contracts of all the staff — both existing and newly transferred — in an effort to respond to a genuine altered business need is valid. However, changing terms just in order to harmonise benefits received by different groups of staff is not permissible, although the government thinks it should be and has lobbied the EU to this effect.

Some employers will claim that there is an entitlement to a generic type of benefit, such as travel insurance, rather than a specific form of that benefit, for example, travel cover up to a particular level. This is a weak argument that should be challenged.

Reps may have to wait until a member actually suffers a loss, say from a lower-rated type of cover, before a claim can be brought.