Changes in work location

The 2014 Regulations have changed the law in an important respect. New Regulations 4(5A) and 7(3A), which apply to all transfers on or after 31 January 2014, have expanded the definition of “changes in the workforce” capable of justifying a contract variation or dismissal for an ETO reason, to include changes to the place where an employee is employed. The practical result of this change is that where an employee has to relocate as a result of a transfer, that relocation will no longer be automatically unfair in breach of TUPE under Regulation 4(9), even though it is to the employee’s “material detriment”. The dismissal must still meet the ordinary requirements for a fair dismissal (see Chapter 6). Employees with at least two years’ service will be entitled to a redundancy payment if made redundant as a result of relocation, subject to normal redundancy laws. This change to the law reverses this aspect of Tapere v South London and Maudsley NHS Trust [2009] UKEAT 0410/08/1908 and Abellio London Limited v Musse [2012] UKEAT/0283/11.

The meaning of the phrase “economic, technical or organisational reason entailing changes to the workforce” is explained in Chapter 5.

Since a dismissal in breach of Regulation 4(9) of TUPE is automatically unfair, liability for that dismissal transfers to the transferee on the transfer date. This is the case even if the employee resigns before the transfer date in anticipation of a substantial detrimental change intended by the transferee.

Only employees in the transferring group can bring this type of claim, not, for example, employees outside the transferring group whose working conditions suffer as a result of the transfer.

It goes without saying that a claim under Regulation 4(9) should be a last resort, after taking careful advice, since it involves resigning and bringing a tribunal claim.