It was held in Smith v Trustees of Brooklands College UKEAT/0128/11 that employees whose terms were changed following a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) could not claim that they were void since the terms were only changed because of a mistaken belief by the new employer that the employees had been overpaid. 

The employees were teaching assistants who were paid as full time employees but only worked part time. They were transferred under TUPE to Brooklands College which, believing that the payment terms were a mistake, agreed a reduction in salary with the employees. The employees claimed the variation was void under Regulation 4 of TUPE because the sole or principal reason for it was the transfer or a reason connected with it.

The EAT held that it is a question of fact in each case as to what the reason for the change is.  It is not a ‘but for' test i.e. but for the transfer, would the changes have been made?  Here, two years had elapsed between transfer and variation and the employer had only made the change because it thought the claimants were mistakenly being overpaid.  The variation was therefore not void by reason of Regulation 4 of TUPE.

This case is helpful to employers as it shows that in certain circumstances changes can be made following a TUPE transfer.  However, the judge made it clear that each case would turn on its facts and that harmonisation of terms would still generally not be permitted under TUPE.