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Changes for a reason unconnected to the transfer
[ch 12: pages 483-484]Contract changes for reasons unconnected to a TUPE transfer have always been allowed, although they must be agreed, just like any normal contract change (see Chapter 3). For example:
Mr Barry was transferred to the private sector from an NHS Trust on Whitley Council terms, which included an enhanced redundancy payment. His new employer promoted him and gave him new contract terms including a pay rise. However, his new contract terms provided only statutory redundancy pay. When he was eventually made redundant, his claim for an enhanced redundancy payment failed because his original contract had been varied for a reason unconnected to the transfer, namely his promotion. He was no longer entitled to Whitley Council terms.
Barry v Bateman Catering [2002] UKEAT1515/00/1204
In another example – Smith v Trustees of Brooklands College [2011] UKEAT/00128/11 – an incoming employer was allowed to justify a cut in the wages of part-time staff because the HR manager genuinely but mistakenly believed that they were being overpaid due to an administrative error by their previous employer. This mistaken belief was a reason unconnected to the transfer, so there was no breach of TUPE.