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Smith v Trustees of Brooklands College looked at lawful post-transfer changes to terms and conditions of employment. The claimants were part-time teaching assistants, previously employed by Spelthorne College and paid effectively as though they were full time. After their TUPE transfer to Brooklands College, the college noticed that they were paid significantly above the sector rate and concluded this was because of a mistake about the hours that they worked. The college consulted with the claimants and they reluctantly agreed to a reduction to bring them in line with other staff. The claimants then submitted a claim that the agreed variation was void under the TUPE regulations, since ‘but for' the transfer, the variation would not have happened.
The EAT held that the correct question was to ask what the reason for the change was. The EAT upheld the tribunal's judgment that the variation was as a result of the college's belief that they had been overpaid in error and determined that the variation was valid and was not void by its connection with the transfer.