Case Round Up – Tapere v South London & Maudsley trust

Tapere v South London & Maudsley trust

Key points

The wording “within the Trust” in the mobility clause were words of definition. The effect of this was that the mobility clause was limited to the Trust’s premises and not those of South London Trust. The clause did not give South London Trust the right to relocate Tapere to its premises. So South London Trust had breached Tapere’s contract.

The term “working conditions” in Regulation 4(9) TUPE covers contractual terms and conditions as well as physical conditions. The relocation constituted a change to Tapere’s working conditions.

Whether a change is substantial for the purposes of Regulation 4(9) of TUPE depends on the nature and degree of the change.

The employee’s opinion is significant in determining whether a change is of “material detriment”, as long as their opinion is reasonable. Does the employee regard the change as detrimental and is it a reasonable position for the employee to adopt?

What you should do

The test for a constructive dismissal claim in connection with a Regulation 4(9) TUPE transfer is a subjective test. Any actions a transferee undertakes which, in the reasonable view of the transferring worker, fundamentally changes their working conditions to their detriment could give rise to a claim for unfair dismissal, potentially even where there is a right to make the change under the contract.

In this case the Employment Appeal Tribunal (EAT) provided guidance on the practical application of Regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Under Regulation 4(9) of TUPE if a transferring employee can show that a TUPE transfer involves or would involve a substantial change in their working conditions which is to their material detriment, the employee may treat their employment contract as being terminated and shall be treated as having been dismissed.

Ms Tapere worked for Lewisham Primary Care Trust (Trust) in its procurement team at Burgess Park, Camberwell. Her contract contained the following mobility clause: “there may be occasions when you are required to perform your duties either temporarily or permanently at other locations within the Trust”.

Relocation

Her employment was transferred (by operation of TUPE) to South London and Maudsley NHS Trust (South London Trust). The terms and conditions of her contract remained the same, however, the South London Trust wanted to relocate Tapere to Bethlem Hospital, Beckenham. She objected to the relocation due to the journey and potential disruption to her childcare arrangements. Despite her objections, South London Trust relocated her. Tapere resigned and claimed constructive dismissal.

The tribunal found that the benefit of the mobility clause had been transferred to South London Trust. It regarded the wording within the mobility clause ‘within the Trust’ as otiose (serving no practical purpose) and did not restrict the clause to only Lewisham’s geographical locations. The tribunal also held that the relocation did not involve a substantial change in her working conditions to her material detriment. The additional travelling distance to her new workplace was 2.5 miles, which was not considered to be materially longer.

Mobility clause

On appeal, the EAT dismissed the findings of the tribunal. The EAT held that the mobility clause was limited to the Trust’s premises which it owned or operated from and so the benefit of the clause was not transferred to South London Trust. The EAT held that the test for determining ‘detriment’ for this purpose of Regulation 4(9) of TUPE requires a subjective test which involves considering the change from the employee’s perspective, provided their view is reasonable.

The EAT remitted the matter to a different tribunal to decide whether the dismissal had been fair.