Subject or object

Tapere v South London and Maudsley NHS Trust

Regulation 4 (9) of the 2006 Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees against dismissal if the transfer involves a “substantial change in working conditions”. In Tapere v South London and Maudsley NHS Trust, the Employment Appeal Tribunal (EAT) said that the test as to whether the change was to the employee’s detriment must be a subjective one.

Basic facts

Ms Tapere worked for Lewisham Primary Care Trust (PCT) until she was transferred under the 2006 regulations to work for the South London and Maudsley NHS Trust on 1 April 2007.

It was envisaged that “as soon as possible after the transfer” she would start working from a different hospital. However, Ms Tapere was unhappy about the proposed change because the extra travelling time would disrupt her childcare arrangements.

While she was on holiday in late August, the Trust wrote to her to tell her that her place of work would change on 10 September. Unfortunately, she did not receive the letter on her return and went to work at her old workplace. She then went off sick, but resigned shortly afterwards and claimed unfair constructive dismissal.

Tribunal decision

The tribunal decided against her. It said that, as her contract contained a mobility clause requiring her to work at other locations “within the Trust”, she could be transferred to locations operated by the transferee. The words “within the Trust” did not add anything to the clause as such and did not mean that it was restricted to her old employer.

Nor could she rely on regulation 4(9) of TUPE, which states that employees can “treat their contract of employment as having been terminated” if the transfer has involved “a substantial change in working conditions” to the employee's material detriment. As her journey time to work was not materially longer, she could not claim a substantial change that was to her detriment.

EAT decision

But the EAT disagreed.

It held that the words “within the Trust” were not “surplus or meaningless. Instead, it said “they are plainly words of definition, which restrict the geographical area. Moreover, it seems to us that the contract falls to be construed at the time that it was entered into”.

By increasing the scope of the geographical area in which Ms Tapere could be required to work, the tribunal had failed to properly interpret the contract to her disadvantage, with the result that she was less protected after the transfer than before. This was contrary to the purposes of the regulations.

As for the correct approach to regulation 4(9), the EAT said that it was made up of two components:

• a “substantial change in working conditions”
  to the “material detriment“ of the person being transferred.

It said that the phrase “working conditions” applied to contractual terms and conditions as well as physical conditions. It was a simple question of fact whether or not there had been a change in these conditions.

Likewise, it was a question of fact for a tribunal as to whether there had been a substantial change, and it was irrelevant whether it took an objective or subjective approach to the issue.

The approach as to whether the change had been to the material detriment of the transferred employee should be that followed in Shamoon v Royal Ulster Constabulary. Namely, to consider the employee’s position and ask whether it is reasonable in the circumstances for them to adopt that position. The tribunal had been wrong to apply an objective test to this issue.

The EAT decided that as a result of changing Ms Tapere’s place of work, she had been constructively dismissed and as it had led to her detriment, she had also been dismissed under regulation 4(9). It remitted the question of fairness of the dismissal and redundancy payment to another tribunal.