TUPE: Changing Employees' Terms and Conditions

This decision of the Employment Appeal Tribunal analysed in some detail the House of Lords' decision in Wilson & Others -v- St Helens Borough Council. It involved two separate TUPE transfers, being the contracting out of a furniture repair and storage undertaking for the RAF by the MoD to an independent contractor (SERCO), and then later a contracting back in of a SERCO contract, including newly engaged employees, back to the MoD.

In each case the employees were dismissed prior to the transfer, and then engaged on new detrimental terms and conditions. The EAT analysed the transactions in detail and stated that there was no difference on the facts between these cases and that of Wilson & Others -v- St Helens Borough Council. The Court decided that the dismissals had taken place prior to the transfer in each case and as such they were valid dismissals.

Their old contracts of employment did not transfer to the new employers. Unfortunately because of the facts, this case yet again does not deal with the issue of when the terms and conditions of an employee who does transfer to a new employer are capable of being changed. As the law currently stands a contractual variation after a transfer of undertakings will be void if it is due to the transfer itself.
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