Representation:

although the general rule is that even if agreed between employer and employee(s) "any purported variation of [a contract of employment] shall be void" if it is connected with change in the ownership of the employing business, or with any other transfer within the meaning of the TUPE regulations, this general rule does not apply if the variation is to the benefit rather than the detriment of the employee(s) concerned (this exception to the general rule is in addition to the "ETO" exception provided by the regulations themselves where a variation is for an "economic, technical or organisational reason entailing changes in the the workforce")

editor's note:

November 2007. The note below relates to the EAT judgment in this case (Power v Regent Security Services EAT on 29th January 2007, reported at [2007] ICR 970 (also at [2007] IRLR 226).

The Court of Appeal subsequently dismissed an appeal by Regent (Regent Security Services v Power [2007] EWCA Civ 1188 on 20th November 2007, reported at [2008] IRLR 66 and at [2008] ICR 442). Agreeing with the EAT, Mummery LJ specifically stated that "Allowing a transferee employer to rely on TUPE in order to prevent a transferred employee from taking the benefit of a varied term agreed by the employer by reason of the transfer is not required either by the aim of, or by the provisions of, the Directive and TUPE".

For relevant general notes see Transfer of business or undertaking/change in terms of employment after