Can it be lawful to remove an employee benefit immediately following a TUPE transfer?

The Employment Appeals Tribunal (EAT) has made it clear in the decision of Taberrer v Mears (Tabberer and others v Mears Ltd and others UKEAT/0064/17/JOJ, [2018] All ER (D) 180 (Feb)) that it can be possible to remove an employee benefit immediately following a Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE transfer). The EAT held that it is possible for a decision to be made at the same time as a TUPE transfer but not be related to or because of the transfer - that context and circumstances must be considered.

The employees were electricians who had been working for Birmingham City Council and historically had been entitled to receive Electricians Travel Time Allowance (ETTA) payments. The employees were subject to several TUPE transfers, most recently to the Respondents.

During the transfer, the Respondent questioned whether there was any contractual entitlement to ETTA payments. After litigation before the ET and EAT, it was determined that there was (see Salt & Others v Mears Ltd), following which the Respondent gave notice that it was bringing the contractual entitlement to ETTA payments to an end. The Claimants objected, arguing that the reason for this variation to their contractual terms was a relevant transfer for TUPE purposes and therefore void.

The ET disagreed, finding that “the contractual variation was made because ETTA was an outdated and unjustified payment”. The removal of the payments was for a reason unrelated to or because of the transfer. The ET further found that, in any event, the Claimants had not met the conditions for payment of ETTA, having not submitted claims - a condition, the Claimants noted, that had not been raised by the Respondent in the Salt litigation. The Claimants appealed against both these findings by the ET and the appeal was dismissed.

This decision is a good reminder for employers in relation to the application of TUPE regulations; TUPE transfers can be restrictive but it should be remembered that context and circumstance play a part too.  This does not mean that employers have carte blanche to remove benefits, just that if all the risks have been considered, it is possible to remove employee benefits in a lawful way.