Regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides that "any purported variation of the contract shall be void if the sole or principal reason for the variation is the transfer itself."
Four directors of LPAM Ltd, a property management firm, improved their contractual benefits ahead of a pending TUPE transfer to AAM. The new rights guaranteed the directors bonuses of 50% of salary, provided entitlements to termination payments of one month's salary for each year worked and enhanced notice periods.
Following the TUPE transfer, AAM dismissed two of the directors for gross misconduct and took the position that the other two directors had not transferred under TUPE. All four directors subsequently brought tribunal proceedings, including claims for the contractual termination payments. The tribunal found that the pre-transfer variations were void considering Regulation 4(4) TUPE in light of the EU abuse of law principle (which prevents EU laws from being used for abusive or fraudulent purposes).
The directors appealed to the EAT.
The EAT dismissed the appeal, finding that the pre-transfer contract variations were void because the main reason for the variations was the TUPE transfer itself. The EAT noted that the purpose of the Acquired Rights Directive (the EU Directive which TUPE implements into national law), was to safeguard employees' rights on transfer rather than to improve an employee's position.
The EAT also found that the directors were in any event precluded from relying on the contractual variations due to the EU abuse of law principle.
The facts of this case are relatively extreme. It is clear that the directors were seeking to enhance their terms and conditions because of the TUPE transfer in a way that placed a significant burden on the incoming employer. In these circumstances the contractual changes were void because they were made by reason of the TUPE transfer.
The case does not mean that contractual changes which benefit employees will be void if they are made for reasons other than the transfer itself.
Under TUPE, contractual variations will be permitted if any of the following apply:
It is also worth noting that the current BEIS guidance states that an employer may vary terms and conditions "when changes are entirely positive from the employee's perspective". However, in this case, the EAT noted that this guidance is only of limited persuasive value.