The Employment Appeal Tribunal ("EAT") held that where there had been a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"), the transferee did not benefit from the employee's mobility clause with the transferor. Accordingly, the transferee's requirement that the employee work from a different location was a breach of contract and when the employee resigned she could claim that she had been constructively dismissed.
Employers involved in acquiring a business which falls under the protection of TUPE should be aware that if the employee's mobility clause is by reference to the transferor's location or business premises, the transfer will not operate to expand the scope of that clause to include its locations or business premises. Therefore, any requirement that an employee's place of work be changed as a result of the transfer could be both a breach of contract and a breach of Regulation 4(9) of TUPE 2006.
Although this case related to a change in the employee's place of work, employers should also note that Regulation 4(9) applies to "working conditions", which the EAT in this case confirmed covers contractual terms and conditions as well as physical conditions. Accordingly, any change to an employee's terms and conditions of employment as a result of a transfer could potentially fall foul of Regulation 4(9) if it is found to be to the employee's "material detriment".
The case of Tapere v South London and Maundsley NHS Trust concerned an employee, Ms Tapere, who worked for Lewisham Primary Care Trust (the transferor) based at their offices in Camberwell. Her employment transferred to South London and Maundsley NHS Trust (the transferee). Although her pay, grading and working hours would remain the same after the transfer, Ms Tapere was informed that her place of work would move to the transferee's premises in Beckenham. Ms Tapere objected to the change to her place of work and raised a grievance complaining that it would increase her journey time to work and cause difficulties in her childcare arrangements.
When Ms Tapere returned from holiday, she went to work at Camberwell only to find that her work place and colleagues were no longer there, the transferee having moved them in her absence to their office in Beckenham. Ms Tapere was very upset and the following day went off sick, before lodging a further grievance and then resigning and claiming constructive dismissal. Ms Tapere's claim was rejected by the Employment Tribunal who found that the benefit of the mobility clause in her contract of employment with the transferor, transferred to the transferee and the locations it owned. Therefore the requirement that Ms Tapere work in Beckenham was not a breach of her employment contract. The Tribunal also found that the move to Beckenham did not fall within Regulation 4(9) of TUPE which allows an employee to treat their contract as terminated if the transfer involves a substantial change in working conditions which is to their material detriment. As the journey to work was not materially longer, viewed objectively, there was no material change which was to Ms Tapere's detriment. Ms Tapere appealed.
The EAT overturned the Tribunal's findings both in respect of the mobility clause and Regulation 4(9) of TUPE. In respect of the mobility clause, this allowed the transferor to require Ms Tapere to work at other locations "within the Trust" and, accordingly, this defined the geographical scope of that clause. The scope could not be widened to Ms Tapere's detriment as a result of the transfer to cover the transferee's locations, as this would defeat the purpose of TUPE.
In respect of Regulation 4(9) of TUPE, the Employment Tribunal was wrong to determine this issue objectively. It was not a case of comparing the employee's position with that of the employer and deciding which of the two was more reasonable.
Instead, the correct approach is to consider the impact of the proposed change from the employee's point of view. Therefore, an Employment Tribunal should ask whether the employee regarded the change as detrimental and, if so, whether that was a reasonable position for the employee to adopt.
The EAT also confirmed that when considering whether there has been a substantial change in working conditions under Regulation 4(9), working conditions covers contractual terms and conditions as well as physical conditions. Whether or not there is a change in those conditions and whether the change is "substantial" are questions of fact for the Tribunal to decide.
On the facts of this case, the EAT held that the transferee had breached Ms Tapere's contract and her subsequent resignation led to a finding that she was constructively dismissed. Ms Tapere was also entitled to treat herself as having been dismissed under Regulation 4(9) of TUPE. The case was remitted to a different Tribunal to determine whether or not the dismissal was unfair.