The case of Tabberer & Ors v Mears Limited & Ors considers the issue of TUPE and whether the removal of a contractual allowance was void.
In this case, the claimants were employed as electricians. They were originally employed by Birmingham City Council (“BCC”) but transferred to Mears Limited under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Whilst employed by BCC, they had received Electricians Travel Time Allowance (“ETTA”). This allowance was introduced in 1958, prior to any of the claimant’s commencing employment with BCC, and its original purpose had been to compensate the electricians for the loss of a productivity bonus because they were required to travel to different depots. At that time, there were around 40-50 depots to which the electricians were required to travel. However, when the claimants brought their claims, the role had evolved and there was only one depot. In addition, the electricians were provided with company vehicles and handheld devices informing them of their allocated jobs.
Whilst it was accepted that the ETTA was a contractual entitlement, Mears Limited gave notice to the claimants that this would come to an end. The claimants objected claiming that it was a variation to their contractual terms, connected to the transfer of their employment to Mears Limited, and was therefore void.
The Employment Appeal tribunal concluded that the reason the employer brought the entitlement to an end was not related to the transfer but rather because it was outdated and unjustified.
The second case of interest this month is that of Mutombo-Mpania v Angard Staffing Solutions Limited which considers disability discrimination.
The claimant was employed as a flexible resourcing employee. Little more than 12 months after he commenced employment, issues arose regarding non-attendance on several occasions for night shifts. The claimant did not provide any specific reason for his non-attendance other than “…incapacity to work regular shifts due to my health condition.” The claimant had not disclosed a disability on his application form, nor on a health form. However, he suffered essential hypertension and took prescribed medication. The employer took the decision to bring his employment to an end and the claimant sought to pursue a number of claims in the tribunal including a claim for disability discrimination.
The Employment Appeal tribunal concluded that the claimant did not provide evidence to support the impact of the physical impairment on his ability to carry out normal day to day activities and, as such, found that his condition did not amount to a disability. Furthermore, simply referring to a “health condition” did not infer that the employer had constructive knowledge of disability.
