Under the recently amended regulations an ETO reason ‘entailing changes in the workforce’ has been expanded by Reg 7(3) so that it includes a change to the place of work. This is a statutory overruling of the principle, that, for there to be an ETO reason, there must be changes in the number of the workforce or changes in the job functions, that was established in Berriman v Delabole Slate Ltd  ICR 546.
This case concerns an unsuccessful attempt to overturn the Berriman principle that still applies in respect of cases under the pre January 2014 Regulations.
There are also some interesting obiter observations of Slade J in the Appeal which will are likely to be revisited in time (see below).
Barnet LB decided to outsource its parking operations. The contract was awarded NSL. The claimants were employed in the back office functions of the parking services. NSL intended to operate part those back office functions from Croydon and to sub contract part of those functions, the payment processing services, to RRD. RRD intended to operate the sub-contracted services from Lansing in West Sussex. None of the Claimants accepted offers to be employed in these locations and were dismissed on the grounds of redundancy on 31 May 2012. The Employment Tribunal held the dismissals were simply because of a change on the place of work and although the dismissals were for an ETO reason this was not one entailing a change in the workforce and they were therefore automatically unfair.
The EAT decision
NSL and RRD appealed on the following grounds: (i) Berriman and other cases upholding the Berriman principle did not concern a change to the place of work but were concerned with change to terms and conditions and were explicable on this basis. (ii) If the effect of Berriman was to prevent an ETO reason from including a change in the workplace, it was contrary to EU law on the basis that the CJEU in Alemo-Herron recognised that the transferee’s freedom to conduct business was a relevant consideration when applying the provisions of the Acquired Rights Directive.
The EAT held, that the decision in Alemo Herron does not alter earlier European jurisprudence on the mandatory nature of the obligations under the Acquired Rights Directive. Further that where a dismissal is simply because of a change in the job location this could not amount to a ‘change in the workforce’ unless clear words were used as they have been by the amendment to Reg 7. For this reason the appeal was dismissed.
Perhaps the most interesting feature of this case is not the result but what Slade J had to say in her reasoning and obiter observations.
First, she made the point, note above, that the decision in Alemo-Herron in which the CJEU appeared to introduce the possibility of the transferee’s business interests being relevant to the application of the Directive, does not affect its mandatory application. Secondly, she gave a reasonable hint (see paragraph 40) that the amendment to Reg 7(2) may not be compatible with the Directive (Art 4). Thirdly, she restated the point that although case law has focussed on job numbers and functions, changes to the workforce go wider than this and could include, for example, a requirement that the workforce have additional skills or qualifications needed even if the jobs they perform remain the same. This could also include changes in techniques requiring additional skills.