When employees’ contracts are varied after a company has been transferred the question is not whether their conditions would have been the same “but for” the transfer, but whether the transfer itself was the sole or principal reason for the change.
In this case, the claimants worked fewer hours per week than full time colleagues but were paid at the full time rate. After the company was TUPE transferred, their new employer decided that the claimants had been overpaid in error and reduced their pay. The claimants agreed to their pay being changed to reflect that they worked part time but then brought claims in the Employment Tribunal claiming the variations in their contract were void because the reason for the variations was the relevant TUPE transfer. The Tribunal found that the TUPE transfer was not the principal reason for the variation.
Whether a variation of terms and conditions was by reason of the transfer is a question of fact and tribunals will look for the actual reason for the change and what caused the employer to make the change.
Smith v Trustees of Brooklands College.