In Ms C Tapere v South London and Maudsley NHS Trust the EAT has provided guidance on the circumstances in which an employee who resigns in response to a "substantial change in working conditions" to their "material detriment" following a TUPE transfer will be treated as having been dismissed by their employer for the purpose of bringing an unfair dismissal claim.
Background
An employee is constructively dismissed if he resigns in circumstances where he is entitled to terminate the employment contract without notice because of the employer's conduct. An employee who has been constructively dismissed can bring a claim of unfair dismissal.
An employee who wishes to claim constructive dismissal must show that they were dismissed and that the dismissal was unfair. In showing they were dismissed by the employer, employees must demonstrate that:
- the employer fundamentally breached the employment contract,
- the breach is the reason the employee resigned and
- the employee didn't delay too long before resigning.
However, where that has been a relevant transfer of employees under the Transfer of Undertaking (Protection of Employment) Regulations 2006, Regulation 4(9) makes it easier for employees who resign to bring a claim of unfair dismissal. They do not have to demonstrate the 3 bullet points above. They need only show that the relevant transfer involves or would involve "a substantial change in working conditions to the material detriment of a person…such that an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer."
Since the TUPE Regulations came into force there has been no appellate authority on the question of what will constitute a "substantial change in working conditions" or a "material detriment" entitling the employee to be treated as having been dismissed and bring a claim for unfair dismissal.
Facts
Following a TUPE transfer Mrs Tapere's employment transferred from Lewisham Primary Care Trust to South London and Maudsley NHS Trust. Consequently, Mrs Tapere was required to change her place of work from Camberwell to Beckenham.
Mrs Tapere lived in Essex and the new place of work was 2 ½ miles extra from her home as a result Mrs Tapere resigned and claimed unfair dismissal against South London and Maudsley NHS Trust.
Decision
The Employment Tribunal accepted that she would have a more difficult journey to make to work via the M25. However, they held that because the journey time was not materially longer than her previous journey time there was no material change to Mrs Tapere's detriment.
The Employment Appeal Tribunal overturned this decision and held that under Regulation 4(9) Mrs Tapere could be treated as having been dismissed by her employer.
In doing so the EAT found as follows:
- "working conditions" should be defined widely and would cover a change in workplace location
- "substantial" is a question of fact which should be determined by considering the nature and degree of any change implemented or intended to be implemented. A change in workplace was a substantial change in this context.
- "material detriment", applying decisions from a discrimination context, the EAT considered that this should be determined by looking at the impact of the change from the employee's viewpoint and not balancing the views of the employer and the employee in introducing the change.
The EAT remitted the case to a new Tribunal to determine the question of whether the dismissal by the NHS Trust was fair.
Commentary
The decision clarifies the meeting of the phrases "material detriment" within the context of the Transfer of Undertaking (Protection of Employment) Regulations 2006 and shows that changes made by any transferor could entitle an employee to resign and claim unfair dismissal without having to meet the higher tests for constructive dismissal of "fundamental breach of contract".
For a full copy of the case please click here.