Employment Law Advocates » Blog Archive » TUPE and mobility clauses

As promised, a summary of my recent appearance at the Employment Appeal Tribunal appears below.

The case of Tapere v South London and Maudsley NHS Trust concerns the scope of Regulation 4(9) of the TUPE Regulations 2006, which allows a person to resign and treat her contract of employment as having been terminated if there is a substantial change in working conditions to her material detriment. It also makes some observations about the scope of mobility clauses and the effect of TUPE upon them.

Ms. Tapere had been employed by the Lewisham Primary Care Trust for more than nine years and was based exclusively at one of their properties in Burgess Park, although a mobility clause allowed her to be moved to any property within the Trust. Following a transfer to the neighbouring South London and Maudsley NHS Trust, she continued to work at Burgess Park but was informed that she would shortly be moving to Bethlem Hospital, a property owned by her new employer. A few months later, she returned from holiday to discover that the move had taken place in her absence and she resigned and claimed that she had been constructively dismissed. The tribunal found that she had not been entitled to resign because the scope of her mobility clause had changed following the transfer to reflect the area covered by her new employer or, alternatively, because the Trust had acted reasonably in proposing the move.

The Employment Appeal Tribunal, chaired by Judge Hand QC, overturned this decision and substituted a finding that there was a constructive dismissal. The case is authority for the following propositions:

1) The geographical range of a mobility clause is not altered by a TUPE transfer and cannot be replaced by one of substantial equivalence in the same way as, for example, an employee profit share scheme.

2) A tribunal may not find an implied mobility clause which differs from an express clause if there is no implied qualification as to reasonableness. There was no evidence of such an implied term in this case.

3) In Regulation 4(9), a material detriment is defined in the same way as a detriment in discrimination law, in the case of Shamoon v Royal Ulster Constabulary. The word ‘material’, which does not appear in the Acquired Rights Directive, adds nothing. Therefore, the tribunal erred by applying an objective test.

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