TUPE 2 – Travel Allowance

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

In Tabberer and Others –v- Mears Ltd and Others the EAT held that the removal of an “out dated and unjustified” contractual allowance was not void under TUPE.

The electricians under their previous employment with the council had an entitlement to “Electricians Travel Time Allowance” which had been introduced back in 1958.  This allowance was contractual, however due to the changes in the working practices of the transferor over the years, it was no longer applicable and therefore Mears Limited gave notice to vary the electricians contracts and bring an end to the allowance.

The EAT held that the question that should be asked is: “What is the reason? What caused the employer to do what it did?”

In this particular case it wasn’t the TUPE transfer that led to the variation but because the allowance was outdated in line with the organisations working practices.

Whilst this case is fact sensitive it does set out a clear test of establishing whether changes to Terms and Conditions are in fact by reason of a transfer.

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