The million dollar question has always been "when can you safely make changes to terms and conditions following a TUPE transfer?"  The simple answer is when the transfer is not the sole or principal reason for the variation.  The following are the key facts of this recent case considering this issue:

  • The employees were teaching assistants on unusually favourable terms in that they were part-time employees paid full time wages.
  • A TUPE transfer took place and the transferee subsequently changed the employee's contracts (with the employees' agreement) to bring their pay into line with the rest of the sector.
  • The employees argued regulation 4(4) of TUPE made the purported variation void as the sole or principal reason was the transfer itself. 
  • The EAT said the relevant question was - what was the reason for the change?  What caused the employer to do it?

The EAT held that this was a finding of fact and the tribunal judge's finding could not be questioned.

Key point: Post-transfer changes to terms and conditions are acceptable providing they are not related to the transfer.  This is a question of fact, not law.

Smith v Trustees of Brooklands College 2011