The EAT case of Mrs Smith (amongst others) v Trustees of Brooklands College addresses the at times perplexing question of when can an employer vary contractual terms post TUPE transfer?

It is trite law that contractual variations are void if they were for a reason connected with a TUPE transfer.  The Claimants were employed at Spelthorne College where they were paid for working a 36 hour week whereas in fact they worked for around 22 hours per week.  The College was transferred to Brooklands where the HR Director, some two years later, looked at the rates of pay for transferring staff and reached agreement with them that their rates of pay should be reduced in a phased introduction.

The key question here was whether the transfer was the reason or principal reason for the change to their contracts or whether this was an independent decision following what the HR Director unearthed.

The EAT supported the Tribunal’s finding that the real reason for the variation was the HR Director’s belief that these individuals had mistakenly been paid this rate and were out of step with the rest of the sector.  The EAT stressed that the test is not ‘but for’ rather ‘what was the reason for…..’

This case will be useful for employers trying to escape the shackles of old terms and conditions.  However, this case is fact sensitive and a cautionary approach needs to be taken to post TUPE transfer changes to T&C’s.