TUPE: EAT Holds That Removal of Outdated Travel Allowance Was Not Void

In the case of Tabberer and others v Mears Ltd and others, the Employment Appeal Tribunal (EAT) has held that the removal of a contractual travel time allowance, which was described as outdated and unjustified, was not void following a TUPE transfer.

The Claimants were a group of electricians who were originally employed by Birmingham City Council (the ‘council’). Whilst employed by the council, the Claimants were contractually entitled to payments of Electricians Travel Time Allowance (ETTA). These payments had been in existence since 1958. The purpose of the allowance was to compensate the electricians for the loss of productivity bonus caused by the need to travel to different depots because the council previously had 30 to 40 depots across Birmingham. However, over the years, depots had been closed and at the time the Claimant’s issued their claims, only one depot remained open. In addition, productivity bonuses had been phased out.

The Claimants were subject to a number of TUPE transfers, however they continued to receive the ETTA even though the need for it had ceased.

In 2008, the Claimants were subject to another TUPE transfer and subsequently transferred to Mears Ltd (the Respondent). The Respondent gave notice to the Claimants stating that ETTA would end with effect from September 2012 as it argued that the ETTA was no longer required.

The Claimants brought claims for unlawful deduction from wages and contended that TUPE served to ensure that any such variations to their terms of employment were void.

An Employment Tribunal (ET) rejected the claims, finding that the contractual variation was made because ETTA was an outdated and unjustified payment – not because of the transfer to the Respondent. In addition, the ET found that, in any event, the Claimants had not met the conditions for payment of ETTA as they had not submitted a claim form for the payment.

The Claimants appealed this decision to the EAT, but their appeal was dismissed. The EAT held that the Respondent’s had made the decision to end the Claimants contractual right to ETTA because it held the belief that ETTA was outdated. The transfer had no bearing on the Respondent’s decision. 

This case provides a good example of a situation where a variation of an employee’s terms and conditions of employment may be permissible following a TUPE transfer.

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