‘Material Detriment' under TUPE

The operation of regulation 4(9) of The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which deems an employee to have been dismissed if they suffer a substantial change to their working conditions to their material detriment was considered by the Employment Appeals Tribunal (EAT) in Tapere v South London and Maudsley NHS Trust UKEAT/0410/08. It was held that whether there had been a substantial change in working conditions was a question of fact to be determined by reference to the nature, as well as the degree, of the change.

Ms Tapere was employed by Lewisham Primary Care Trust and was transferred under TUPE to the South London and Maudsley Trust (SLMT). Her terms and conditions of employment remained the same but her place of work changed from Camberwell to Beckenham. The move was delayed due to a lack of space at Beckenham. Meanwhile, Ms Tapere lodged a grievance, stating that the extra travelling time to Beckenham would disrupt her childcare arrangements. Ms Tapere discovered on her return from holiday that the office had been moved, in her absence, to Beckenham. She lodged a further grievance and subsequently resigned and claimed constructive dismissal. The Tribunal held that Ms Tapere had not been dismissed under regulation 4(9) because "viewed objectively" there had not been a substantial change in her working conditions to her material detriment. The Tribunal also found that Ms Tapere's contract included a mobility clause stating that she could be required to work at other locations ‘within the Trust'. As such, the benefit of this clause transferred under TUPE to SLMT. Ms Tapere appealed.

The EAT upheld the appeal. It held that the Tribunal should have found that SLMT was in breach of contract and that Ms Tapere was deemed to have been dismissed by operation of regulation 4(9). The EAT noted that there are two parts to regulation 4(9): (i) a substantial change in working conditions; and (ii) a substantial change which causes a material detriment. ‘Working conditions' covers contractual as well as physical conditions. The EAT held that whether there is a change in these conditions and whether any change is ‘substantial' is a question of fact to be determined by reference to the nature, as well as the degree, of the change. The impact of the change should be considered from the employee's point of view to decide whether there was a material detriment. The EAT remitted the question of whether Ms Tapere's dismissal had been unfair to a fresh Tribunal.