Transfer causing substantial detrimental change 




There are special rules where a transfer results, or will result, in a substantial worsening in working conditions for transferring employees. Under regulation 4(9), TUPE, if 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 (a “deemed” dismissal), and to claim unfair dismissal or a redundancy payment in the employment tribunal. 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, although the longer the delay, the harder it becomes to show that the transfer, and not some unrelated event, caused the detriment. 




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 substantially worsened as a result of the transfer (for example, because their workload substantially increased) cannot 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. Two years’ service is needed to bring a claim. 



Claims for “deemed dismissal” under regulation 4(9), TUPE and constructive dismissal claims are high-risk courses of action that involve resigning from your job. They should only ever be a last resort, after taking careful advice.



There will be no breach of regulation 4(9), TUPE if the employer can establish an economic, technical or organisational (ETO) reason for making the change (regardless of how detrimental it is), as long as that change entails “changes to the workforce”. The change must be to the numbers, functions or location of the workforce. (The law in Northern Ireland is different. Here, a change to work location does not provide not a valid ETO reason.) This aspect of TUPE is explained in more detail on page 442.