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22 May 2019
The Employment Appeal Tribunal (EAT) has upheld a decision that the removal of outdated contractual entitlements following a Transfer of Undertakings (Protection of Employment) (TUPE) transfer was not void, as the sole or principal reason was not the transfer or a reason connected with the transfer.(1)
The transferring employees were electricians, originally employed by Birmingham City Council (BCC). Their employment had been transferred several times and they ultimately became employed by Mears Ltd.
While at BCC, the electricians received an electricians' travel time allowance (ETTA). This had existed since 1958 and was paid in order to compensate electricians for loss of a productivity bonus caused by the need to travel to different depots. At the time that the ETTA was introduced, BCC had more than 30 depots across Birmingham, but only one of those remained at the time of this claim. Productivity bonuses had also been phased out at BCC.
Initially, the ETTA was paid following the employees submitting a claim form, which would be signed off by their line manager. However, over time, it was accepted that the ETTA might have been paid as a matter of routine without submission of such a form.
The transferor employer immediately before Mears had questioned the continued need for the ETTA, but the then employer wanted to avoid a dispute with trade unions about this at a time when they were negotiating an extension to the contract. It appears that the ETTA payments continued because it was believed there was a legal requirement to do so.
Mears questioned the allowance when the contract was transferred to it, but the transferor's managers were unable to definitively explain the continuing basis for the payment of the ETTA. On that basis, as of the date of transfer in April 2008, Mears decided to stop making the payments.
A grievance raised by the trade union on the employees' behalf was not upheld and litigation ensued. The employment tribunal and the EAT decided that there was a contractual entitlement to the ETTA, and so there had been an unlawful deduction from wages.(2)
After receiving the outcome, Mears wrote to the employees stating that the contractual entitlement would cease as the allowance was "inappropriate", "fail[ed] to support… business needs going forward" and was "wholly unfair on the remainder of the workforce who operate in exactly the same way".
The employees started another employment tribunal claim. They contended that the variation of the contract was for a reason connected to the transfer (the pre-2014 formulation of Regulation 7 of TUPE being in force at the relevant time), and so it was void. The employment tribunal found that the reason for the change was Mears' belief that the payment was outdated and unjustified, and the sole or principal reason was not the transfer. The employees appealed to the EAT.
The employees' main arguments on appeal were as follows:
The EAT said that the essential question in this case was what had been the reason for the variation, which was a question of fact. It concluded that the Salt litigation was the context of the decision, but not the reason for it. That litigation determined the contractual entitlement to the ETTA regardless of the transfer. The belief that the ETTA was outdated and unjustified had not arisen purely on transfer. Rather, it was a pre-existing belief and had been previously questioned by the transferor's managers.
The EAT also considered that the wording in the letter had been mischaracterised. It was not a reference to harmonisation but highlighted a need for fairness among a workforce group, regardless of TUPE. Finally, the EAT ruled that if the employees wished to object to Mears' change in position from the Salt litigation – namely, the requirement for forms to be submitted – this should have been raised before the employment tribunal. It could not be raised at the EAT for the first time.
This is a relatively rare example of contractual changes following a TUPE transfer being permissible, albeit in the context of the specific circumstances of this case. It is clear from the EAT's judgment that the mere fact of a TUPE transfer and a change occurring shortly afterwards is not in itself sufficient for a claim to succeed. A deeper delve into the true reason behind the change is required in every case, and this may be evidenced by matters that occurred prior to the transfer taking place.
While the EAT's decision is based on the 2006 version of TUPE prior to the amendments in 2014, the result would most likely have been exactly the same under the current legislation.
For further information please contact Saffron O'Gorman at Lewis Silkin by telephone (+44 207 074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Tabberer v Mears Ltd – judgment available here.
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