Case - (1) C Smith (2) C Bailey (3) K Corley (4) J Callard v. Brooklands College Trustees

LTL 19/10/2011, Employment Appeal Tribunal - Nadia Motraghi

The appellant teachers (T) appealed against a decision that a variation in their salary by the respondent college (B) was not connected to a transfer of undertakings. T had been employed on a part-time basis by a college (S), working for 43 weeks of the year. However, whilst their salary was paid pro rata on that basis, it was also paid on the basis of a full-time 36-hour week, whereas they worked 25 hours a week. Although a calculation on that basis was unusual, it had been made by agreement. S and B merged, and T's contracts were transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006. B reviewed T's salary, and concluded that T had been mistakenly overpaid because there had been no reduction to take account of the fact that they worked 25 hours per week, not 36, and consequently their pay was out of step with the rest of the sector. B varied T's contracts with their consent. T issued the instant proceedings, claiming that the variation was void as it was connected with the transfer and so fell within reg.4(4). The employment tribunal judge held that the variation was as a result of B's belief that T had been overpaid in error. He concluded that the variation was valid and was not void by its connection with the transfer. T submitted that the variation was connected with the transfer.

HELD: The judge had reached a clear conclusion that could not be interfered with. He determined the facts and then made a legal assessment as to whether the variation was connected with the transfer, Lawson v Serco Ltd (2006) UKHL 3, (2006) 1 All ER 823 applied. While B had been wrong in its assessment that T was mistakenly overpaid, there had been an error in that T's salary did not conform to other part-time workers within the sector who received a pro-rata reduction both in respect of the number of weeks worked and number of hours worked in those weeks. T's salary had been varied because they had not been paid in accordance with standard practice, not because of any connection with the transfer. Whilst both the Regulations and Directive 2001/23 had the protection of employee rights at their core, neither gave an employee additional rights. B could have varied T's terms and conditions in relation to pay by agreement at any stage, irrespective of the Regulations, provided that the transfer or a reason connected with it was not the sole or principal reason. The judge's decision was correct, Martin v South Bank University (C-4/01) (2003) ECR I-12859 ECJ (6th Chamber) considered (see paras 27-31 of judgment).

Appeal dismissed

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