In the case of Tapere v South London & Maudsley NHS Trust, the claimant worked for the local NHS Primary Care Trust (PCT) and, although she only worked in one location, her contract stated that she could be asked to work from other premises 'within the Trust'. Her job was then transferred under TUPE to the respondent and she was asked to work at their Bethlem Hospital site - this was outside the area that had been covered by the PCT.

She did not want to work there - it was further from her home - and she resigned.

The employment tribunal rejected her claims of constructive dismissal and entitlement to a redundancy payment on the basis that the fact that her contract had a mobility clause in it, permitted the transferee employer to require her, if reasonable to do so, to change her place of work to anywhere within its own remit.

She appealed to the EAT which has now allowed her appeal and said that the mobility clause must be interpreted as originally written. So, in asking her to work outside the area covered by the transferor, the transferee was in breach of contract. Furthermore, she was entitled to rely on TUPE reg. 4(9) - she was resigning because of a 'substantial change' that operated to her 'material disadvantage' (that test being applied subjectively) as in the discrimination case of Shamoon - with no objective test imposed.

So there was a constructive dismissal - which might be a redundancy - but that was remitted to the employment tribunal to decide.

Point to note –

  • In the case of a mobility clause, it seems that there is no concept of 'equivalence' that has been applied to other clauses which cannot be replicated by the transferee in contracts of employees who transfer under TUPE, so the contract must not be read as if it was referring to the geographical area in which the transferee held premises.