Varying contracts
We look at four employment tribunal cases in which the claimants argued that their employer's failure to make better use of the Coronavirus Job Retention Scheme rendered their dismissal unfair.
In Ferguson and others v Astrea Asset Management Ltd, the Employment Appeal Tribunal held that the transferor's substantial improvements to the employment contracts of senior employees shortly before the transfer were void under TUPE legislation and the EU abuse of law principle.
In Abrahall and others v Nottingham City Council and another, the Court of Appeal held that a number of employees who had continued to work without protest throughout a two-year pay freeze had not agreed to a variation of their contracts of employment.
James Buckley, Iain Naylor, Chris McAvoy and Lucy Sorell are associates and Mona Jackson is a trainee solicitor at Addleshaw Goddard LLP. They round up the latest rulings.
In this case, the retailer Boots took a business decision to reduce long-serving workers' double time for Sunday and bank holiday working to time-and-a-half, but the employment tribunal found this to be an unlawful variation of the workers' terms and conditions of employment.
In this test case, the employment tribunal found that an NHS trust had unlawfully amended its pay progression policy to provide that staff would be denied a pay rise if their sickness absence reached a certain level.
The employer in this case fell into the trap of assuming that, as long as it waited for a while (one year in this case) after a TUPE transfer, it could detrimentally alter the contractual benefits of employees who had transferred, in a bid to harmonise its workforce's terms and conditions.
The Employment Appeal Tribunal has confirmed that an agreed variation of an employment contract following a TUPE transfer is effective where the transfer is not the sole or principal reason for the variation.
The Employment Appeal Tribunal has held that, where an employer offers an incentive to employees to secure agreement to variation of their contracts, it is reasonable not to offer that benefit as part of an offer of re-engagement following dismissals for failure to agree.
The employer in this case wanted to make a blanket variation to its workforce's contractual notice periods. However, the employer got itself into the difficult position of varying the claimant's notice period, while the rest of the workforce refused the change.
Employment law cases: HR and legal information and guidance relating to varying contracts.