New case concerning TUPE transfers and substantial changes which are materially detrimental to employees

4 September 2009

Background
Ms Tapere (“T”) was an employee of Lewisham Primary Care Trust (“PCT”). She and some of her colleagues were TUPE transferred to work for the South London and Maudlsey NHS Trust (“South London Trust”). In strict geographical terms, her new place of work at the South London Trust hospital was only 2.5 miles further than her original work place. T objected to the additional time it would take her to commute to her new work place. She explained she was a single mother and the additional time it would take her to commute would be a substantial and material detriment to herself and her family.

She stated that the mobility clause within her contract of employment restricted her to work within the geographical area of the PCT. The clause read: “Location – There may be occasions when you are required to perform your duties either temporarily or permanently at other locations within the Trust”.

She resigned when her workplace was moved. She made a claim for constructive dismissal. In response to this claim, her new employer stated that the mobility clause meant that they could transfer T to anywhere within the area of the South London Trust rather than restricting her to work within the boundaries of her former PCT employer. Her new employer also stated that the additional commuting distance of 2.5 miles could not be considered to be a substantial or materially detrimental change in T’s working conditions.

Decision at the Employment Tribunal
The Tribunal decided that the new location was not significantly further away from T’s home and that the additional travelling time involved in travelling to her new workplace could not be said to amount to a fundamental breach of her employment contract. The term “within the Trust” in the mobility clause was superfluous and did not restrict T’s employment to the boundaries of the PCT. Neither was there a breach of part 4(9) of the TUPE regulations. This was because an objective rather than a subjective examination of the “material detriment” in the move was assessed by the Tribunal. They decided that in moving to her workplace, she would experience no objective substantial change or material detriment. T appealed.

Decision at the Employment Appeal Tribunal

Mobility clause
The EAT stated that the Tribunal should have decided that the term “within the Trust” did not mean the area covered by her new employer. To interpret this phrase differently was to alter T’s original contract, to her disadvantage. The mobility clause within her original contract only empowered her employer to require to her to move to other locations within the PCT area and “within the Trust” was not a superfluous phrase that could be ignored in this case. Consequently, T could not be required to move to a new location within the boundaries of the South London Trust hospital; even if it was only 2.5 miles further than T’s current workplace.

Substantial change in working conditions and material detriment
T’s change of workplace meant potential disruption to child care arrangements and a longer or altered journey which she did not wish to undertake. The two components in regulation 4(9) of TUPE 2006 which mattered in this case, were those dealing with a “substantial change in working conditions” which were “to the material detriment of a person whose contract of employment is ... transferred”. The EAT stated that whether there had been a substantial change in working conditions was a simple question of fact to be determined by looking at the nature as well as the degree of change. Contractual terms as well as physical conditions can amount to “working conditions”.

The approach of the Tribunal, in using an objective test to see if here had been a substantial change and material detriment ,was incorrect. The Tribunal had objectively determined the case by weighing and arbitrating the competing arguments of T and her employer. The questions that the Tribunal ought to have asked were whether the employee regarded those factors as detrimental and, if so, whether that was a reasonable position for the employee to adopt.

Comment
A seemingly trivial change for one employee in one setting can be a substantial and detrimental change for another within a different context. This case illustrates that the nature as well as the degree and character of change is likely to be important in determining what amounts to a detrimental factor in TUPE transfers.