Transfer causing substantial detrimental change 


There are special rules where a transfer results, or will result, in a substantial worsening in working conditions. Under regulation 4(9), 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 dismissed and claim unfair dismissal or a redundancy payment. However, someone who relies on their rights under regulation 4(9), TUPE cannot claim payment in lieu of any contractual notice period.


This kind of claim can be brought before or after the transfer. The case law is not clear as to how long it might be safe to wait after the transfer. But the longer the delay, the harder it will be to show that the transfer was the cause of the detriment, as opposed to some unrelated reason. 


A change in working conditions can be “substantial” even if it does not result in a breach of the employment contract. It could include a significant change to contract terms, physical working conditions or non-contractual benefits.


Regulation 4(9), TUPE only protects transferring employees. Any employee who resigns because although they did not transfer, their working conditions have substantially worsened as a result of the transfer (for example, because their workload substantially increases) will not be able to rely on regulation 4(9), TUPE. Instead, they must establish a fundamental breach of contract and claim constructive dismissal (see Chapter 10: Constructive Dismissal).


A dismissal in breach of regulation 4(9), TUPE is automatically unfair. However, as with all TUPE-related claims for unfair dismissal, two years’ service is needed to bring a claim.