12 October 2011 #Employment
Changing terms and conditions after a TUPE transfer can be tricky. If the terms are being changed because of the transfer itself or for a reason connected with the transfer which is not an economic, technical or organisational reason entailing changes in the workforce then TUPE renders the change void. Worse still, employees can arguably cherry pick between the best of their old and new terms!
The recent EAT case of Smith v Trustees of Brooklands College asked whether the reason for the change in employee terms was the transfer itself and therefore void. Teaching assistants were paid as full time employees but worked part time. They transferred under TUPE to a new employer who realised that this was out of step with the sector and wanted to bring this into line.
Reluctantly the employees agreed to the detrimental change but brought a claim that the change was void under TUPE. They alleged that the change was void because the `sole or principal reason` for the change was the transfer iself.
The Claimants argued that "but for" the transfer the variation would not have taken place. The EAT gave this short shrift and held that this is not the correct test. The real question is why the employer made the change. The reason was to correct an obvious error in pay. This and the gap in time between the transfer and the variation in terms meant that the change was allowed and upheld.
It is good news to see the EAT endorsing this common sense approach, allowing an obvious error such as this to continue simply because there had been a TUPE transfer in the past (effectively the employees` case) would have put an unreasonable burden on the college. This does not change the general position that changes because of the transfer will be void.