Jeffrey Jupp's TUPE resource

Lewis v Dow Silicones UK Limited EAT – 4 March 2021


This case illustrates the difference between what amounts to a fundamental breach of contract for the purposes of unfair constructive dismissal and what amounts to a “substantial change to working conditions to working conditions to the material detriment of [the employee]” for the purposes of Reg 4(9).

The Background

L worked at a power plant in South Wales as an operations technician. He was transferred to D, the transferee, on 1 March 2018. The terms of his contract (which was by way of an incorporated Npower collective agreement) provided for the following: (i) a 37 hour working week; (ii) a management power to determine work patterns by reference to operational requirements; (iii) payment of a shift and unsocial hours allowance; (iv) a requirement that employees would “undertake duties and responsibilities commensurate with their grade and competency”, supplemented by an Npower “Contribution statement” that a key accountability was the “application of safe systems of work … which may include taking on the duties of Safety Controller/Safety Co-ordinator as required by the location manager”.

Over the years a practice had grown up whereby the operations technicians worked 168 hours over a 5 week shift pattern. Over the year this meant they were working less than the contracted 37 hours per week (1747 hours rather than 1924 hours). Further any work over the 168 hours was voluntary overtime and not accounted by reducing this shortfall. L worked 400 hours voluntary overtime 2017. 

D intended to change the callout arrangements. Each employee would be paid £9,000 for up to 150 hours irrespective of the actual hours worked  when called out. This was no longer voluntary. Previously L had earned £10,354 for the shift and unsocial hours allowance.

D also wished to introduce a system where operations technicians would issue “Safe Work Permits” relating to machine safety. This had previously been the responsibility of engineers. This was to involve training over a period of six months.

L’s case was that the transfer would involve substantial changes to his material detriment for the purposes of Reg 4(9). He also alleged the proposed changes were a fundamental breach of contract and resigned claiming constructive dismissal.

Employment Tribunal Decision

The ET held rejected his claims finding that: (a) that under his existing contract the employer was entitled to introduce the changes, and; (b) that the changes were not substantial change(s) in working conditions to L’s material detriment. In relation to the new standby/call out duties the ET held L was contracted to work 37 hours per week and that the proposed 150 hours per year cover was well within this number of hours calculated annually and also that the management had the right to determine work patterns by reference to operational requirements. In relation to the new safety responsibilities the ET held that the new duties were commensurate with L’s grade and competency and were within the key accountabilities mentioned in the Contribution Statement.

Employment Appeal Tribunal decision

The EAT (HHJ Shanks) rejected L’s appeal on the constructive dismissal issue but upheld his appeal under Reg 4(9). In doing so it restated the following principles established in Tapere v South London and Maudsley NHS Trust:

  • The regulation can apply even where there is no breach of the employee’s contract of employment;
  • Whether there is a change in working conditions and whether it is substantial are questions of fact;
  • The nature as well as the degree of any change needs to be considered in deciding whether it is substantial; and the nature (or “character”) of the change is likely to be the most important aspect in determining this;
  • The question whether a change in working conditions is to the “material detriment” of an employee involves two questions: (a) whether the employee subjectively regarded the change as detrimental and, if so, (b) whether that was a reasonable position for the employee to adopt.

In relation to the standby hours, even though these were within the terms of the contract, the change was a substantial and detrimental change because previously overtime had been entirely voluntary, now the employee was generally compelled to undertake it. In relation the new Safety Permit arrangements, again even if D was permitted to extend L’s duties within the terms of the contract, this was irrelevant to Reg 4(9) claim, and the fact training was being offered was also not determinative and did not mean there was not a substantial change to L’s detriment.

Employment Appeal Judgment

Employment Tribunal Decision

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