Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawTUPE

Case Round Up – Tapere v South London & Maudsley trust

by Personnel Today 9 Nov 2009
by Personnel Today 9 Nov 2009

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.

 

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Editor’s comment; Tribunal Service Report
next post
Dunedin Canmore Housing Association v Donaldson

You may also like

AI in employment: the pitfalls and laws on...

21 Sep 2023

CIPD publishes manifesto for good work

20 Sep 2023

Right to predictable working hours receives Royal Assent

19 Sep 2023

TUPE: Share plan transferred to new employer, judge...

7 Sep 2023

Personnel Today Awards 2023 shortlist: Employment Law Firm...

7 Sep 2023

AI taskforce launched to address gaps in law

4 Sep 2023

Strikes Act consultation aims to establish minimum service...

25 Aug 2023

25 years of employment tribunals – a system...

25 Aug 2023

Bank holidays: six things employers need to know

25 Aug 2023

Flexible working legislation: what will the new rules...

16 Aug 2023

  • Discover the value of CIPD accreditation PROMOTED | See how the CIPD can increase your earning potential...Read more
  • What does it mean to be an HR professional in 2024? (survey) PROMOTED | The world of HR is changing rapidly...Read more
  • The Contractor Management Mastery Pack: Everything you need to manage and pay global contractors PROMOTED | Answers to cross-border...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+