Post-Transfer Relocation Risks Constructive Dismissal Claims
Published November 2009
Employees relocated on a TUPE transfer may be able to claim constructive dismissal where a mobility clause only refers to the transferor’s worksites or where the change causes material detriment from the employee’s viewpoint.
The case, Tapere v South London and Maudsley NHS Trust, concerned an individual who transferred under TUPE from one NHS Trust to another. Her place of work changed from Camberwell to Beckenham. The mobility clause in her terms and conditions of employment allowed her original employer to move her to work at other locations “within the Trust”. The EAT ruled that, following a TUPE transfer, this continued to cover only the transferor Trust’s locations. TUPE does not operate to expand the scope of such a clause to cover the transferee’s workplaces.
TUPE allows an employee to claim constructive dismissal where there is a substantial change to working conditions to the employee’s material detriment. The term “working conditions” is not just confined to contractual terms but also extends to physical conditions.
The EAT has confirmed that, while the test for substantial change is an objective test which looks at the facts of the particular case, the test for detriment is subjective. The Tribunal should consider the employee’s own viewpoint. In this case, because the relocation resulted in extra travelling time which disrupted the employee’s childcare arrangements, it was deemed that the employee had suffered a material detriment.
Transferees in this situation may have to consider treating the situation as a geographical/ workplace redundancy situation if the employees are unwilling to relocate. This will need to be factored into the pricing and/or any indemnities.
