Tapere v South London and Maudsley NHS Trust ET/2329562/07

Mrs Tapere worked in Camberwell and lived in Grays. In April 2007 her job was transferred to the Trust under TUPE and it was proposed that she would work in Beckenham. She objected to the change of location because of her family arrangements. She resigned and claimed constructive unfair dismissal and a dismissal contrary to TUPE. The tribunal held that the relocation was not a fundamental breach of contract and she had not been dismissed under TUPE.

On appeal the EAT held that whether there has been a substantial change was a question of fact and the impact of the change had to be considered from the employee’s point of view. It held that she had been dismissed by operation of TUPE. A fresh tribunal was required to decide whether her dismissal was for redundancy and if it had been unfair. The tribunal held it was a redundancy and there was no ETO reason so it was also automatically unfair. Although there were good economic and organisation reasons for the Trust to relocate to Beckenham none of those reasons entailed a change in the workforce. For there to be an ETO reason, there must be a change in the numbers for the workforce or changes in their job functions. In this case, as the whole team transferred intact and unchanged there was no ETO entailing changes in the workforce and therefore her dismissal was automatically unfair.

Key point: Where there is a change of location, the critical issue will be whether this is a substantial change to the employee’s contract and whether the employee’s refusal is unreasonable. This will always be dependent on the facts.