Ms C Tapere was employed as a member of the procurement team by Lewisham Primary Care Trust (the PCT). Her contractual place of work was at Burgess Park, Camberwell, in south London, and her contract of employment included a mobility clause envisaging that she could be required to perform duties at other locations within the PCT. Tapere’s employment transferred to the South London and Maudsley NHS Trust (the Trust) on 1 April 2007 in a transfer governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
It was proposed that following the transfer, Tapere should move to a hospital in Beckenham, although this did not happen immediately. The move did not involve a significantly longer commute in terms of distance, but Tapere was unhappy about the prospect, believing it would take longer and interfere with her childcare arrangements.
She returned from holiday in September 2007 to find that her colleagues had moved to Beckenham and that she was required to do so too. She was signed off sick and resigned as of 22 November 2007. She claimed constructive dismissal and that she had been dismissed as a result of a “substantial change in working conditions to [her] material detriment” under Regulation 4(9) of TUPE, which provides a resignation in such circumstances is treated as a dismissal by the employer.
The tribunal held that the mobility clause allowed the Trust to require Tapere to work in Beckenham, despite it referring to locations within the PCT, which would not cover Beckenham. The tribunal ignored the words in the mobility clause referring to locations within the PCT, on the basis that they added nothing to the clause. It also held that there had been no breach of contract in forcing the move, either on the basis of reasonableness being implied into the mobility clause, or there being an implied mobility clause, itself subject to reasonableness. Therefore, Tapere’s claims failed.
The Employment Appeal Tribunal upheld Tapere’s appeal, finding that the Trust had both breached her contract and dismissed her as a result of Regulation 4(9). The tribunal’s approach on the mobility clause had been incorrect in a number of ways: the words restricting the clause to locations within the PCT were not superfluous, but were vital to defining the ambit of the clause; although the Trust operated in a different area, it was not possible to invoke the doctrine of “substantial equivalence” to read the clause so as to refer to the Trust’s area rather than the PCT’s; and no question of an implied term arose. In relation to Regulation 4(9), the relocation had been a change of working conditions, but as to whether there was material detriment, this had to be assessed from the employee’s point of view – she had considered the change to be detrimental, and the tribunal should then have judged whether it was reasonable for her to take that point of view.
This case is a useful illustration of issues surrounding mobility clauses in the context of a TUPE transfer. The courts will not “read in” a different meaning where the new employer is in a different location – the purpose of TUPE is (as the name implies) the protection of employees, not the facilitation of the new employer’s business. This means that if there is a TUPE transfer to an employer in a different location, it may find that it cannot force employees to relocate without being in breach of contract. It is also a reminder that the operation of mobility clauses is not subject to a general test of reasonableness.
In the context of Regulation 4(9) of TUPE, whether a change has a materially detrimental effect is to be judged from the employee’s point of view, rather than taking a more objective approach of balancing the competing views of the employer and employee. While understandable from an employee protection point of view, this does make it much more difficult for an incoming employer to predict whether a change will give rise to a claim under Regulation 4(9). A good consultation process prior to the transfer should flush these issues out, however, and give the new employer an opportunity to deal with them
Bob Cordran, partner, Thomas Eggar