Post TUPE variation of contract
Mr Tabberer and his colleagues were electricians. They were originally employed by Birmingham City Council. Their employment transferred several times by way of TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) over the years. At the time of the tribunal claims, they were employed by Mears. The employees were contractually entitled to receive an Electricians’ Travel Time Allowance, though the historical reasons for the allowance no longer existed. Mears varied the employees’ contracts to remove the allowance, saying it was outdated.
The employees brought claims saying that the variation was connected to the TUPE transfer to Mears. The variation was therefore void (which means unenforceable) and the employees were still entitled to the allowance. The Employment Appeal Tribunal disagreed. Just because a variation takes place after a TUPE transfer does not necessarily mean that the transfer is the reason for that variation. The question was: what caused the employer to remove the allowance?
The EAT found that Mears removed the allowance because it was outdated. Even before the transfer, the previous employer had thought it was outdated (they had chosen not to do anything because they did not want to provoke the trade unions while business contracts were being renegotiated). The principal reason for removing the allowance was not the transfer. The evidence showed that it was removed because the working conditions no longer justified its payment. Thus the variation was not void and the electricians were not entitled to claim the allowance.