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Transfer causing substantial detrimental change
The situation is different if the transfer results in a substantial worsening in your working conditions. Under regulation 4(9) of TUPE, where a transfer involves (or would involve) a substantial change in working conditions to the material detriment of a transferring employee, that employee is entitled to regard themselves as having been dismissed and claim unfair dismissal or a redundancy payment.
A claim under regulation 4(9) can be brought either before or after the transfer. The case law is not clear as to how long it might be safe to wait after the transfer.
Unlike a claim for constructive dismissal, there is no need for the employee to establish a fundamental breach of the employment contract in order to bring a statutory claim under regulation 4(9). A substantial change in working conditions can be either a significant change to contract terms, or to physical working conditions. This means that, for example, the regulation could be relied on where an employee is forced to relocate to new premises, even though the contract contains a mobility clause:
Because of a TUPE transfer from a Primary Care Trust (PCT) in Lewisham to the South London and Maudsley NHS Trust, Ms Tapere’s place of work changed from Camberwell (inner London) to Beckenham (outer London). All her other contract terms were unchanged. As a single parent with complicated school pick-up and drop off arrangements, the new location represented a significant hurdle.
Ms Tapere resigned and brought a tribunal claim. The EAT agreed that the transfer had resulted in a substantial change in her working conditions and amounted to a dismissal under regulation 4(9).
The Trust was unable to rely on a mobility clause in Ms Tapere’s contract.
Tapere v South London and Maudsley NHS Trust [2009] UKEAT 0410/08/1908
Five bus drivers operating from a London depot that suited their family circumstances were entitled to resign and treat the resignation as a dismissal under regulation 4(9) of TUPE when, as a result of a TUPE transfer, the drivers were expected to work out of a new depot. The new arrangements would have added substantial travel time by public transport to and from work, at awkward shift times when transport services are limited. This was a “substantial change” to their material detriment entitling them to resign. The test was factual, not contractual, so the employer was not allowed to rely on a contractual mobility clause requiring employees to relocate.
Abellio London Limited v Musse [2012] UKEAT/0283/11
It is important to note that regulation 4(9) only protects employees who are inside the pool of transferring employees. Anyone outside the pool who is detrimentally affected by a TUPE transfer (because, for example, their workload substantially increases) must demonstrate a fundamental breach of contract, and bring an ordinary constructive dismissal claim.