The Employment Appeal Tribunal has confirmed that an agreed variation of the salary of four teaching and learning assistants after their employment had been transferred was not precluded by the TUPE Regulations.  The four claimants had worked part-time at Spelthorpe College, but were being paid full-time salaries. This anomaly was spotted by the new HR manager two years after their employment had been transferred to Brooklands College.  The claimants, under some pressure, agreed to vary their contracts of employment so that their pay was reduced on a phased basis. They then brought claims alleging that this agreement was of no effect, since it infringed the provision in TUPE which prevents contracts of employment being varied, even by agreement, when this is for a transfer-related reason.

The EAT decided that the employment judge had been entitled to conclude that the variation of the claimants’ contracts was for a reason unconnected with the transfer. This was despite the fact that the HR manager had been wrong in her assumption that the salary anomaly was due to a mistake.

Employers and their advisers have long been on the look-out for a decision that draws a clear dividing line between transfer-related variations to contracts of employment, and those unconnected with the transfer.  However, although this case was decided in the employer’s favour, this outcome has more to do with the unusual facts of the case than establishing any new principles in this difficult area of the law. While the lapse of time since the transfer was clearly a factor, it must have helped the new employer that there appeared to be no rational basis for the way the claimants’ original salaries had been arrived at, which were out of line with normal salary levels in the further education sector. That made it much easier to argue that the transfer had nothing to do with the decision to impose a variation, since the HR manager would plainly have approached employees who had not transferred in the same way.