Tabberer & Ors v Mears Ltd & Ors UKEAT/0064/17/JOJ

Appeal against a ruling that a contractual variation was not a relevant transfer for TUPE purposes and was therefore not void. Appeal dismissed.

The Claimants were electricians who had originally been employed by Birmingham City Council ("BCC"); their employment had been subject to a number of TUPE transfers, ultimately to the Respondent. Within BCC, electricians had enjoyed payments of Electricians Travel Time Allowance ("ETTA"), albeit that the reasons for this allowance had ceased to exist over the years. Although managers within the transferor company had questioned payment of ETTA, it was an allowance that had continued to be paid until the transfer to the Respondent in 2008. The Respondent first questioned whether there was any contractual entitlement to ETTA. After litigation before the ET and EAT, it was determined that there was (see Salt & Others v Mears Ltd). Faced with that determination, the Respondent gave notice that it was bringing this contractual entitlement to an end. The Claimants objected, arguing that the reason for this variation to their contractual terms was a relevant transfer for TUPE purposes and therefore void (see Regulation 4(4) TUPE). The ET disagreed, finding that the contractual variation was made because ETTA was an outdated and unjustified payment. The Claimants appealed.

The EAT dismissed the appeal. The ET had found that the variation of the Claimants' terms of employment was due to the Respondent's conclusion that ETTA was an outdated and unjustified allowance; in the circumstances, it was entitled to find that this was a reason unrelated to the earlier transfer to the Respondent.

Published: 24/09/2018 11:23