Employment law

Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE)

CPL Distribution Ltd v Todd [2003] IRLR 28

The Court of Appeal upheld a tribunal's decision that a personal assistant had not been transferred under TUPE.

She was not assigned to the part of an undertaking transferred by her employers when they lost a contract.

This was the case, even though the majority of her work related to the contract transferred.

An employment tribunal had been entitled to take into account that the employee was effectively assigned to a particular manager as his personal assistant and the fact that there was no evidence that the manager was 'assigned' to the undertaking transferred either, since a substantial part of his time was involved with other activities.

The fact that he was not 'assigned' was 'a strong pointer' that he and his personal assistant were not part of the 'human stock' of the undertaking transferred.

Variation of contract

International Packaging Corporation (UK) Ltd v Balfour & others [2003] IRLR 11

Employees had a basic working week of 39 hours.

The employers suffered falling orders and unilaterally introduced short-time working.

This cut the employees' earnings.

The employees claimed they had suffered an unauthorised deduction from wages.

A tribunal chairman upheld the claims, finding that there was no express contractual term which permitted the unilateral introduction of short-time working.

However, the chairman considered that such a term could be implied on the basis of custom and practice.

Despite that, the chairman ruled that the deductions had not been authorised by a relevant provision of the employees' contracts, because the employers had not notified the employees in writing of the existence and effect of that term.

The employers appealed, arguing that there was no deduction from wages, because the employees were being properly paid for the hours they actually worked.

The Employment Appeal Tribunal rejected that appeal and allowed the employees' cross-appeal against the finding of the implied term.

A cut in the working hours is plainly a variation of a contract of employment and unless provided for by that contract, any deduction of wages - even if related to hours actually worked - is not authorised by statute and can only be achieved by agreement.

The evidence did not support the finding of an implied term based on custom and practice.

There is nothing to suggest that the employees had agreed to an open-ended commitment to accept shorter working hours and lesser wages whenever the employer chose unilaterally to introduce short-time working.

By Martin Edwards, Mace & Jones, Liverpool