Friday 21 August 2009

TUPE and Constructive Dismissal (Important Case)

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT has handed down its decision in Tapere v South London & Maundsley NHS Trust, which is authority for the proposition that:
  1. post-transfer, the test for whether a substantial change to working conditions - which covers contractual terms - is to the material detriment of a transferred employee, under TUPE 2006 reg 4(9), follows Lord Scott's formulation for detriments in Shamoon, a discrimination case, looking at the impact of the change from the employee's reasonable viewpoint, not by balancing the views of the employee and employer.

  2. transferees cannot use a 'substantial equivalence' argument to defend breaches of pre-transfer terms, except when terms present practical difficulties, like share options. A mobility clause is unchanged upon transfer.
On these facts, changing the place of work, to a transferred employee's detriment, led to a dismissal. The EAT remitted the questions of fairness of the dismissal and redundancy pay to a new tribunal.

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