Employment Update October 2009: TUPE

14 October 2009

Employment Group

TUPE transfer does not alter mobility clause

In the case of Tapere v South London & Maudsley NHS Trust, the claimant worked for the local NHS Primary Care Trust (PCT) and, although she only worked in one location, her contract stated that she could be asked to work from other premises 'within the Trust'. Her job was then transferred under TUPE to the respondent and she was asked to work at their Bethlem Hospital site - this was outside the area that had been covered by the PCT.

She did not want to work there - it was further from her home - and she resigned.

The employment tribunal rejected her claims of constructive dismissal and entitlement to a redundancy payment on the basis that the fact that her contract had a mobility clause in it, permitted the transferee employer to require her, if reasonable to do so, to change her place of work to anywhere within its own remit.

She appealed to the EAT which has now allowed her appeal and said that the mobility clause must be interpreted as originally written. So, in asking her to work outside the area covered by the transferor, the transferee was in breach of contract. Furthermore, she was entitled to rely on TUPE reg. 4(9) - she was resigning because of a 'substantial change' that operated to her 'material disadvantage' (that test being applied subjectively) as in the discrimination case of Shamoon - with no objective test imposed.

So there was a constructive dismissal - which might be a redundancy - but that was remitted to the employment tribunal to decide.

Point to note –

  • In the case of a mobility clause, it seems that there is no concept of 'equivalence' that has been applied to other clauses which cannot be replicated by the transferee in contracts of employees who transfer under TUPE, so the contract must not be read as if it was referring to the geographical area in which the transferee held premises.


A ‘material difference’ in catering service provision meant there was no TUPE transfer

We reported in July on Metropolitan Resources v Churchill Dulwich and others, the first reported decision of the EAT on a TUPE transfer where there is a ‘service provision change’ rather than a transfer of an undertaking. In that case, the EAT had no difficulty in deciding that a TUPE transfer had taken place.

However, in their second reported case, OCS v Jones & Ciliza, the EAT has decided, on the facts, that TUPE did not apply.

The EAT noted that the TUPE regulations state that one of the three occasions on which a service provision change may occur for TUPE purposes is when ‘activities cease to be carried out by a contractor...  and are carried out by...  a subsequent contractor on the client’s behalf’. The EAT accepts that, for the purposes of TUPE reg.3 (1)(b)(ii), those activities need not be carried out the same way after the transfer for TUPE to apply.

However where, as in this case, the transfer of the catering contract at the BMW car plant in Cowley meant that a full service canteen providing hot food was replaced by a kiosk selling sandwiches, the EAT says that the employment tribunal was right to say that there was a 'material difference' in the activities which was more than a mere ‘service provision change’ and this meant that there was no TUPE transfer.

Point to note -

  • As always, this TUPE case was decided on the basis of its specific facts. It seems to have been very important to the employment tribunal that the claimants were trained chefs who were being asked to do a completely different job post-transfer. Please consult us for more specialist advice on the extent to which the TUPE regulations may, or may not, apply to any proposed business changes.