TUPE breached after two-and-a-half mile commute increase

Further light was shed on what TUPE regulations really mean by a substantial change in working conditions in a recent case that arose after a hospital trust worker’s commute increased when she transferred to another trust.

Ms C Tapere brought the case after resigning from her job in a procurement team when she transferred from the Lewisham Primary Care Trust at Burgess Park, South London, to the South London and Maudsley Trust (SLMT) and its Bethlem Hospital location in Beckenham, Kent.

Tapere, who commuted by car from Grays, Essex, resigned from her job in January 2008 and lodged a constructive dismissal claim at the employment tribunal (ET) on the grounds that TUPE 2006 regulations had been breached as the move was a “material detriment”.

The ET decided that because “the journey time to work was not materially longer… there was, viewed objectively, no material change to the claimant’s detriment”. The ET had heard that Tapere’s commute had increased by two-and-a-half miles.

But the EAT ruled that the ET’s interpretation increased “the scope of the geographical area in which the employee could be required to work. This altered the terms of her contract to her disadvantage and resulted in her employment being less protected after the transfer than it was before”.

It added that this interpretation was the “antithesis” of the purpose of TUPE 2006 and the relevant EC directive.

The EAT said that SLMT was in breach of TUPE regulations, and that Tapere was free to pursue her claims for unfair dismissal and redundancy payment at another tribunal.

Commenting, legal firm Addleshaw Goddard said: “This demonstrates that the bar for this type of quasi constructive dismissal claim in connection with a TUPE transfer is set low as long as the employee reasonably believes the change to be detrimental, and that is sufficient to launch an unfair dismissal claim.

“This is an additional trap for unwary transferees. As well as having to honour all the contractual terms and conditions following a transfer, transferees must also avoid taking any action which could, in the reasonable view of individual employees, worsen working conditions.”