Labour Research October 2009

Labour Research October 2009

EAT rules on location, location, location case One of the big issues for staff after a takeover is the location from which they will be expected to work. Back-up examines a case which sheds further light on post-transfer changes to working conditions. Ms Tapere was a procurement officer who had originally started work in Camberwell, London for Lewisham Primary Care Trust. On 1 April 2007, her employment was transferred to South London and Maudsley NHS Trust (SLAM). The trust acknowledged that Tapere’s pay grading and working hours would remain unchanged posttransfer. However, SLAM started consulting with Tapere about relocating her to their Bethlem Hospital site in Beckenham, Kent. Tapere lived in Essex and objected to a changed journey. She was particularly concerned about the impact of working from Beckenham on her ability to successfully operate her existing childcare arrangements. In late August 2007, Tapere went on holiday. On her return she found a letter from SLAM waiting for her. The letter explained that her place of work would from 10 September, the following day, be in Beckenham. One week later Tapere resigned. She gave a number of reasons for doing so, including SLAM’s fundamental breach of contract in moving her place of work. A claim for constructive dismissal was lodged by Tapere. The employment tribunal examined the mobility clause in Tapere’s contract: “There may be occasions when you are required to perform your duties either temporarily or permanently at other locations within the trust.” The tribunal considered that the effect of the final three words of that clause was to require Tapere to work from the sites of the trust to which she had transferred. The tribunal decided that alternatively, that is, if it was wrong on this point, the mobility clause was subject to an implied term of reasonableness. Specifically, as the new site was in fact nearer (via the M25) to Tapere’s home, no fundamental breach of contract had occurred by asking her to work from SLAM’s premises. On the same basis, the request for her to relocate did not amount to a substantial and materially detrimental change to working conditions — which would have been prohibited by section 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Accordingly Tapere’s tribunal claim failed. However, she appealed. The Employment Appeal Tribunal (EAT) found that where the mobility clause referred to locations “within the trust”, that was a reference to working at the sites run by her employer at the time. Tapere had, at the point at which she agreed her contract with Lewisham Primary Care Trust, undertaken to work from their sites only. By increasing the geographical area from which Tapere could be asked to work, the tribunal had made her contract less advantageous to her than it had been prior to the transfer. This is prohibited by TUPE. Significantly, the EAT rejected the employer’s argument that the principle of “substantial equivalence” should apply — that where the previous term can no longer be met the closest alternative will suffice. Accordingly, Tapere could not be required to relocate to Bethlem Hospital, and by trying to force her to do so, the new employer had breached Tapere’s contract. Furthermore, there was no need for the tribunal to have applied an implied term of reasonableness when considering the meaning of the mobility clause. In other words, the mobility clause was a clear express term of the contract, and understanding its meaning did not require consideration as to what would be a reasonable application of the clause.

In order to assess whether the contractual change complained of constituted a material detriment under section 4(9) of TUPE, the EAT considered that the test laid down in the discrimination case of Shamoon v Royal Ulster Constabulary [2003] IRLR 285 was the appropriate one. Essentially was the treatment of such a kind that a reasonable worker would, (or might justifiably), take the view that it was to his or her detriment. Tapere found the potential disruption to her childcare arrangements as well as a journey travelling on the M25 to be unattractive. The tribunal applied the wrong tests and should have considered whether those factors represented a detriment, and if so, whether that was a reasonable position for her to take. As to the contractual (rather than the above statutory) position, Tapere’s written agreement had clearly been breached. She had therefore been dismissed. The case was remitted to a different tribunal to assess whether the dismissal was fair and whether a redundancy payment was due, that is, had an offer of suitable alternative employment been unreasonably refused. This case suggests that a new employer may well struggle to force TUPE transferring staff to work from a new location. While any mobility clause will be a very important indicator of from where an employer can be required to work (the Home Office v Evans [2008] IRLR 59 test), it is at least as important to consider the reality of the situation. In other words, where has the employee worked during his or her contract (the High Tables v Horst [1997] IRLR 513 test)? Employees who do not wish to change location should set out why the new location would be problematic for them. If the employee prefers to take a redundancy payment, as s/he has another job to go to, and the new location is less convenient to get to/further away from where s/he has previously worked, it may well be possible to resist relocating. Ms C Tapere v South London and Maudsley NHS Trust UKEAT/0410/08