The Ongoing Saga of TUPE and Contractual Variations: Power v Regent Security Services Limited * [2007] IRLR 226, EAT
本文分析Power案中法院认定有利于员工的合同变更有效，尽管有禁止因企业转让而变更合同的规定，并指出该案凸显了欧盟及英国企业转让立法中员工权利保护的深层困境。
Power v Regent Security Services Limited addresses a short point—the validity of a change agreed to the contract of employment of an employee in connection with a relevant transfer for the purposes of the transfer of undertakings legislation and which was to the advantage of that employee. The contractual amendment in question was held to be binding on the employer, notwithstanding the prohibition on transfer-related contract variations established by the case law on what is now the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) and its parent, the Acquired Rights Directive 2001/23 (the Directive). What this note seeks to argue is that the issue raised in Power and its resolution, while of themselves relatively straightforward, nonetheless highlight the difficulties still at the heart of the protection of employee rights under European and domestic transfers of undertakings legislation. The transfer of undertakings legislation confers mandatory protection on the terms and conditions of employment of the employees who are the subject of a relevant transfer, such that those employees cannot validly and effectively agree diminutions to their contractual rights in circumstances where the changes in question are connected with the relevant transfer. This principle is established by the well-known line of authority comprising, inter alia, Daddy's Dance Hall [1998] IRLR 315, ECJ, Wilson v St. Helen's Borough Council [1998] IRLR 706, HL, and Martin v South Bank University [2004] IRLR 74, ECJ. The foundation of this principle was the statement in Daddy's Dance Hall that ‘… the [employment] relationship may be altered with regard to the transferee to the same extent as it could have been with regard to the transferor, provided that the transfer of the undertaking itself may never constitute the reason for that amendment’.