![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201305.jpg)
How long are terms protected?
There is currently no time limit to the right to maintain terms and conditions under TUPE. An employee who has a contractual term that has transferred from the old employer continues to have the right to benefit from that term until it is lawfully changed.
In Taylor v Connex, the EAT held that an employee dismissed two years after a transfer could still claim protection under TUPE. His employers wanted him to agree to a change to his terms and conditions, to bring them into line with those of other workers. He refused and was dismissed. The EAT ruled that the dismissal was automatically unfair because it was related to a TUPE transfer.
Taylor v Connex South Eastern EAT/1243/99
However, in practice, the more time that passes following the transfer, the more difficult it will be to show that the transfer was the reason for any contractual change. Over time, an employer can point to reasons unrelated to the transfer, for example difficult economic conditions, or a promotion, to justify the change. In the following example, the employer was allowed to make the change without infringing TUPE because it could point to a reason unrelated to the transfer — the need to correct a mistake by the previous employer — that motivated the change:
A group of teaching and learning assistants (TLAs) were transferred to Brooklands College. Their new HR director noticed that they were being paid a full-time rate for a 25 hour week. She mistakenly assumed this was an error, whereas in fact, the TLAs had successfully negotiated this deal with their previous employer. Some two years after the transfer, the TLAs agreed to a cut to their pay in line with their hours, but they then brought a tribunal claim, arguing that the change was void under regulation 4 of TUPE.
The EAT said that the key question to ask is: what was the sole or principal reason for the variation? Was it the TUPE transfer, or was it some other unrelated reason? The reason for this variation was the HR director’s belief that the TLAs were being overpaid because of an error which needed correcting, motivating the employer to negotiate the change. This was not a reason related to the transfer, so the variation was not void.
Smith v Trustees of Brooklands College [2011] UKEAT/00128/11Does it matter if no specific transferee has been identified at the time of any variation or dismissal?
No. In Spaceright Europe Limited v Baillavoine ([2011] EWCA Civ 1565), the Court of Appeal confirmed that TUPE will still prevent contract change, even if there is no prospective transferee on the horizon at the time of the contract change, as long as the sole or principal reason for the change is a transfer-related reason, for example, to make the business more saleable, as opposed to a non-transfer related reason, such as a need to cut costs. Again, the question is: what was the sole or principal reason for the change: was it related to the transfer? (Note that Spaceright is under appeal to the Supreme Court).
Similarly, contract change can still be void for a transfer-related reason, even if there are a number of potential transferees on the scene at the time the change is made, and even if the eventual purchaser was not among them at the time.