TUPE

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Tapere v South London and Maudsley NHS Trust EAT

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Reg 4(9) provides:

(9) Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.

This case considered what is meant by “substantial change” and “material detriment“.

The Facts

The employee, worked for Lewisham Primary Care Trust (‘PCT’). She was transferred to the South London and Maudsley NHS Trust (‘the Trust’). During the course of the consultation process, which preceded the transfer, there had been discussions as to the employee’s terms and conditions of employment and that her place of work would move to the Trust’s premises at Bethlem Hospital, Beckenham. Her contract contained a clause which provided Location There may be occasions when you are required to perform your duties either temporarily or permanently at other locations within the [PCT]”. The move of the employee’s place of work involved her in a longer commute. Although not substantially longer, it did interfere with her childcare arrangements.  After negotiations came to nothing the employee resigned and claimed constructive dismissal.

The employee lost before the ET who held that the clause set out above meant that the employee could be transferred to other locations of the transferee.  Furthermore, because her commute was not significantly increased there was no repudiatory breach of contract. Finally, there was objectively no material change to her detriment within Reg 4(9).

The EAT

In allowing the appeal the EAT held:  The ET’s approach to the mobility clause was wrong: the words restricting the clause to locations within the PCT were not superfluous, but were vital to defining the ambit of the clause; the Trust’s argument that the doctrine of “substantial equivalence” should be applied so as to apply the clause to the Trust’s area rather than the PCT’s was misplaced.

As for Reg 4(9); the relocation had been a change of working conditions.  Whether there was material detriment was not an objective test in which the interests of the employer and employee had to be weighed together, rather , what had to be considered was the impact on the employee and if she  considered the change to be detrimental, and ET should then have judged whether it was reasonable position for her to take.

Link to judgment

 

 

 

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