TUPE

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Smith v Trustees of Brooklands College EAT

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This case restates the correct approach to determining whether the sole or principal reason for a variation of terms and conditions is the transfer or a reason connected to the transfer (Reg 4(5)).   It was held by the EAT that the test to be applied was not a “but for” test. The question was, what was the reason for variation; what caused it?     Because of the materially identical wording the same approach will be taken in dismissal cases under Reg 7.

Facts

The employees worked part time at Spelthorne College but were paid a full time salary. A transfer to Brooklands College took place in 2007 after which the employer sought to lower the employees’ rates of pay and in 2010 the employees agreed reluctantly to variation of their contracts.

The employees argued that the transfer was the reason or principal reason or a reason for variation. The employer argued that the decision was independent of the transfer. The ET accepted that employers; case that the Head of HR had looked at the way in which part timers were paid, noticed that the Claimant employees were not paid in accordance with that, concluded that this was the result of a mistake and decided to vary their contracts. Accordingly ET found that the agreed variations in 2010 were valid and effective.

The EAT

The EAT dismissed the Appeal. The test to be applied was not a “but for” test. The question was, what was the reason for variation; what caused the employer to do it?

The Claimants had agreed their salaries with Spelthorne so the Head of HR of Brooklands was wrong to conclude there had been a mistake. Even so, there was no doubt that her reason for variation was the fact that the Claimants were not paid in accordance with standard practice. This was not a reason falling within Reg 4(4).

HHJ McMullen QC held (at para 30):

Applying the European Court’s approach to the Directive in Martin, where the sole reason is what is effectively a wish to harmonise, regulation 4(4), is engaged, but where the sole or principal reason is not connected with the transfer the variation may take effect. The purpose of the regulations is to give effect to the purpose of the Directive. Both of these have as their core, as it is variously put, the safeguarding of employee rights, the protection of employee rights. None of these, however, gives an employee additional rights, and the domestic legal position is correctly summarised by this very case. A variation in the terms and conditions of employment relating to the pay of these part time workers can be effected by an employer by agreement; alternatively by terminating the contract. In this case we need focus only on consensual variation, which was achieved. That respects the workers’ rights within the context of the Directive and the regulations. What would avoid that effective agreement is the connection with a TUPE transfer.

Link to judgment

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