The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its effect on a variation in the contract: ‘I also bear in mind the fact the sole or principal reason test within regulation 4(4) is a high test and much higher of course than the motivation tests in discrimination law. The test in the subparagraph (b) is somewhat lower however and the Respondent has not sought to put forward any economic, technical or organisational reason in reliance upon the second limb of subparagraph (b).’ and
‘We reject the contention that the tribunal has ignored relevant evidence. Its findings are a detailed exegesis of the circumstances from which these dismissals arose. The tribunal knew exactly what it was to determine: whether there was a connection; and if the connection was the principal reason between the dismissal and the transfer. The tribunal held that the reason was harmonisation.
We reject the submission that the harmonisation is not related to the transfer. Again that is a matter of fact for a tribunal to establish and it has done here. The chronology is telling. From the outset, notwithstanding the blip of the Vice Chancellors’ representation, the intention was to place all of the academic staff on UNL terms. Thus when it was actually implemented two years later it did not in any way lose its connection or its relationship to the merger. In our judgment the tribunal was entitled to make that finding and it did so for reasons which are cogent see paragraph 20.2 of its reasons.
This kind of appeal truly does raise a question of fact and in our view there is no question of law associated with it. The tribunal criticises the material which was put before it by the Respondent in that no other decision maker was a witness and there was a distinct absence of relevant minutes. On that basis it had to make findings and draw influences from its primary findings and the inferences which it draws were entirely permissible.’
Judges:
His Honour Judge McMullen Qc
Citations:
[2006] UKEAT 0286 – 06 – 1708, UKEAT/0286/06
Links:
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 2006
Citing:
Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .
Cited by:
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 08 July 2022; Ref: scu.245394
