Many thanks for your patience. If the Transfer of Undertakings (Protection of Employment) Regulations 2006 (better known as TUPE) apply to a transfer, those employees assigned to the transferring business will automatically move to the new employer on their existing contractual terms and conditions. Simply put, the new employer would 'step into the shoes' of the old employer and the employees should start working for the new employer as if nothing had changed, apart from the name of their employer.
So the first thing to consider is whether the current benefit is specifically part of your contract as that is the only way you can expect it to transfer to the new employer.
Automatic transfer is the ideal outcome, although post-transfer difficulties can often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions as they may not necessarily agree with the terms they were entitled to under their old contracts. However, under Regulation 4(4) of TUPE any changes are automatically void if the sole or principal reason for them is the transfer.
The only circumstances under which an employer may wish to try and introduce changes are:
- If they were unconnected to the transfer; or
- If they were necessary for an economic, technical or organisational (ETO) reason, subject to employee agreement or the terms of the contract permitting the change.
Some employers may try and justify making changes by arguing that they are needed in order to harmonise the transferring employee’s old terms with the new employer’s standard terms. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend a person's terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such changes so harmonisation will rarely be used as a justifiable reason.
If there are concerns about the fairness and validity of any changes introduced by the employer following a transfer, a formal grievance can be raised with the employer. Following that, the main option to pursue this would be by resigning and making a claim for constructive dismissal in the employment tribunal.
Does this answer your query?