www.employmentappeals.gov.uk/Public/Upload/EATS.0034.07judgment.doc

This case serves as a sharp reminder that the parties involved in a TUPE transfer cannot by agreement override the automatic operation of law which serves to transfer an employee’s employment to the new employer. In Capita Health Solutions v McLean the claimant was an occupational health nurse working for the BBC. The BBC announced that part of their HR department (in which Mrs McLean worked) would transfer to Capita. Mrs McLean raised a grievance citing her concerns that there would be a significant change to her role and her pension conditions would not be as favourable. Her grievance was rejected and she resigned for the reasons stated in her grievance whilst agreeing to carry out a 6 week handover secondment to Capita. Her employment therefore continued after the date of transfer to Capita. The EAT held that Mrs McLean was not allowed to exercise her right to object under Regulation 5(5) of the TUPE Regulations (which would have preserved her right to claim constructive dismissal) since her secondment for Capita produced the result that her employment transferred, even though there had been an agreement to the contrary. Regulation 5(5) is clear that to preserve the right to object, an employee must terminate his employment ‘without notice if a substantial change is made in his working conditions to his detriment’.