Overly open clause in TUPE agreement

andy_westken

I have recently received a TUPE transfer agreement. While most of it appears fairly routine, one clause strikes me as overly broad -- especially when compared to the terms in my original contract with the company that was taken over. Could you please review it and advise whether I should be concerned? Also, would you recommend requesting that this clause be tightened up before I accept the agreement, or is this type of wording now commonplace?

This clause is (Place of Work):

Upon transfer your role will change to a remote worker based from your home address. If this address changes, the Company reserves the right to review your contractual work location. The Company reserves the right to appoint you to other positions and require you to carry out additional or alternative duties (whether within the Company or any Group Company) and to base you at other locations whether temporarily or permanently, as the needs of the business require. You may be expected to travel throughout the UK and abroad in the performance of your duties. However, you will not be required to work outside the UK for any continuous period of more than one month.

Compared with the clause in my current/previous contract (Place of Work):

Your normal place of work will be <company address>.Due to the nature of the company's business you may from time to time be required to work away from your normal place of work both in the United Kingdom and overseas.The Company may require you to carry out your duties on a temporary or permanent basis from other locations within the United Kingdom as the needs of the Company's business reasonably require. You will be given at least one month's notice of any such change.

Note that the change to remote working has happened because the office near me was closed.

I thought that under TUPE regulations, when your employment transfers to a new employer, your existing terms and conditions of employment should transfer over automatically and remain unchanged. In the new version of the clause, the part about additional or alternative duties is an addition..

Thanks, Andy

Brie

Is it possible that the old company has issued a change of contract due to covid working and you haven't kept up with this?  

EnPointe

andy_westken said: <snip>

I thought that under TUPE regulations, when your employment transfers to a new employer, your existing terms and conditions of employment should transfer over automatically and remain unchanged. In the new version of the clause, the part about additional or alternative duties is an addition..

Thanks, Andy

I suggest you  familiarise yourself with  what TUPE actually says and also with the Measures  and any negotiations  around those i nthe TUPE agreement that  covers your transfer, 

Redeployment is  fairly standard practise in any business  especially if there is a likelihood of  changes to the business or the  business relies directly on the continued presence of a contract / SLA with a particular  ( set ) of Client(s) 

MyRealNameToo

andy_westken said:

I have recently received a TUPE transfer agreement. While most of it appears fairly routine, one clause strikes me as overly broad -- especially when compared to the terms in my original contract with the company that was taken over. Could you please review it and advise whether I should be concerned? Also, would you recommend requesting that this clause be tightened up before I accept the agreement, or is this type of wording now commonplace?

This clause is (Place of Work):

Upon transfer your role will change to a remote worker based from your home address. If this address changes, the Company reserves the right to review your contractual work location. The Company reserves the right to appoint you to other positions and require you to carry out additional or alternative duties (whether within the Company or any Group Company) and to base you at other locations whether temporarily or permanently, as the needs of the business require. You may be expected to travel throughout the UK and abroad in the performance of your duties. However, you will not be required to work outside the UK for any continuous period of more than one month.

Compared with the clause in my current/previous contract (Place of Work):

Your normal place of work will be <company address>.Due to the nature of the company's business you may from time to time be required to work away from your normal place of work both in the United Kingdom and overseas.The Company may require you to carry out your duties on a temporary or permanent basis from other locations within the United Kingdom as the needs of the Company's business reasonably require. You will be given at least one month's notice of any such change.

Note that the change to remote working has happened because the office near me was closed.

I thought that under TUPE regulations, when your employment transfers to a new employer, your existing terms and conditions of employment should transfer over automatically and remain unchanged. In the new version of the clause, the part about additional or alternative duties is an addition..

The main part of TUPE is that your continuous service will remain the same despite you being a new employee of the new firm. 

Its not hard for a company to change your contract during TUPE or totally outside it, depending on how much hardball they want to play it can get nastier if they want you to agree to it rather than force it through. A prior acquisition had employees from both firms move to new terms. They didnt force anyone to accept but made it very clear that for those staying on their old contracts that the discretionary bonuses (20%), profit shares (10%) and pay rises (variable) will all become 0% for them until they move to the new terms. 


Looking at the two sets of terms its fairly swings and roundabouts... you are now a home worker which most people would consider a good thing and money saving. You can now only be sent overseas for 1 month max whereas there was no time limit in the prior contract. You no longer get a 1 month notice for moving to a different part of the country permanently but pragmatically if its not a reasonable commute from your current address they are going to have to give you notice if nothing more than for practical reasons. 

TheSpiddalKid

To provide some kind of reassurance, tribunals generally dislike very broad-brush flexibility and variation clauses within contracts; they prefer them to be measured, commensurate with the role, and, where possible, specific to the aim of achieving a legitimate business purpose. 

So, for example, if there is a very broad clause that states something like, 'We may relocate you anywhere between here and the planet Zanadoo to perform any job or task within the known and unknown universe that we see fit.' A tribunal is likely not to accept it at face value but to be asking about proportionality and reasonableness based on the business objectives and personal circumstances.