The risk for any employer who dares to change terms and conditions following a TUPE transfer is that the change will be considered to be connected to the transfer, and therefore void. There is an exception if the employer can show that the contractual change was for a reason totally unconnected to the transfer. This what the employer in Tabberer v Mears Ltd sought to do.

The claimants in the case were electricians originally employed by Birmingham City Council, but whose employment had transferred under TUPE from one employer to another a number of times. Their employment transferred to Mears on 1 April 2008.

The electricians’ employment contract provided for the payment of an electricians travel time allowance (ETTA). The ETTA had been introduced in 1958 at a time when electricians employed by the Council travelled between several depots when performing their duties. However, by the time relevant to the claim, only one depot remained.

Mears viewed the ETTA as outmoded and unjustified, and decided not to pay it any longer. The affected electricians disputed this. Litigation then ensued under the title of Salt and others v Mears Ltd. The outcome of that litigation was to find that the claimants in Salt had a contractual entitlement to ETTA despite the courts finding the allowance was “outmoded” and “prehistoric with no resemblance to modern times”. Following the conclusion of the Salt litigation, Mears decided to remove the entitlement to the ETTA with effect from 1 September 2012.

The electricians responded by bringing claims for unauthorised deductions of wages arguing that the contractual variation made in 2012 was void because it was connected with a TUPE transfer. The Employment Tribunal disagreed with the electricians and dismissed their claims. The electricians appealed and the matter proceeded to the Employment Appeal Tribunal (EAT).

The key question for the EAT was, what was the reason for Mears’ decision to end the ETTA? What caused Mears to do what it did?

The EAT concluded that the reason, or principal reason, for Mears’ decision to end the ETTA was its belief that the entitlement was outdated. Crucial to this decision was the EAT’s finding that the Salt litigation was merely the backdrop to Mears’ decision to end the ETTA, not the reason for the decision. The EAT found that the Salt litigation merely confirmed that the ETTA was outmoded, but it did not create a connection between the decision to end the ETTA and the TUPE transfer.

“The operative reasoning – the belief that the payment was outdated and unjustified – did not arise purely on the occasion [...]]]> http://lawandlabour.com/tupe-did-not-bar-employer-from-removing-outdated-travel-allowance/feed/ 0 http://lawandlabour.com/pimlico-plumbers-loses-supreme-court-appeal-about-plumbers-status-as-worker/ http://lawandlabour.com/pimlico-plumbers-loses-supreme-court-appeal-about-plumbers-status-as-worker/#comments Sun, 17 Jun 2018 14:00:09 +0000 http://lawandlabour.com/?p=2582 Gary Smith carried out plumbing work for Pimlico Plumbers (Pimlico) between 2008 and 2011. He had entered into agreements with Pimlico which provided that he was a “sub contracted employee” and later a “self-employed operative” of the business. He was bound to comply with the rules in a company manual, including a requirement to work a minimum of 40 hours a week, and the payment of rental charges to Pimlico for the use of their work van and mobile phone.

This case has been rumbling through the courts for a number of years. In August 2011, Mr Smith attempted to bring claims for unfair dismissal, unlawful deduction of wages, disability discrimination and holiday pay in the employment tribunal. In the original tribunal decision, which was handed down in April 2012, it was decided that Mr Smith was not an employee, but he was found to be a worker. Pimlico appealed. In November 2014, the Employment Appeal Tribunal agreed with the tribunal’s decision.

Pimlico made a further appeal to the Court of Appeal. Our report on the court’s dismissal of that appeal can be found here. Pimlico appealed to the Supreme Court.

In considering the appeal, the Supreme Court focussed on two questions when deciding whether or not Mr Smith was a worker:

The court noted that Mr Smith’s contracts with Pimlico gave him a limited right to employ a substitute. He could engage another person to provide assistance if he lacked the specialist skill required for a particular job. The Supreme Court found that assistance in performance was not the same as substitution of performance.

Mr Smith was also permitted to arrange for a job to be carried out by another Pimlico operative if he wished to work on a more lucrative gig himself. However, there was no contractual right underpinning this arrangement. It was merely a concession made by Pimlico.

Taking both of these findings into account, the Supreme Court concluded that the right to use a substitute was of insignificance to Pimlico. In addition, the fact that Mr Smith could only use another Pimlico operative to do jobs on his behalf who would also have been subject to the same heavy obligations as him indicated that the right of substitution was not truly unfettered.

The Supreme Court concluded:

“The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. ” Supreme Court

The second issue for the Supreme Court to decide was whether Pimlico was in reality Mr Smith’s client or customer, which would be the situation if Mr Smith was a self-employed contractor providing services to Pimlico. This turned on whether Pimlico was obliged to give Mr Smith work that he was in turn obliged to carry out.

The Supreme Court noted that the contractual arrangement [...]]]> http://lawandlabour.com/pimlico-plumbers-loses-supreme-court-appeal-about-plumbers-status-as-worker/feed/ 0