TUPE and changes in working conditionsPosted: 18 Mar 2021
An employee is TUPE’d. The new employer changes my terms. These are important to me. But, he says, these terms were not contractual. But I say the change is a serious change to my terms and conditions and TUPE protects them.
Who is right? You are. TUPE protects you from changes to working conditions which are ”substantial” and which would be to your material detriment if so changed. This applies even if these working conditions are not contractual and so even where there is no breach of the employee’s contract of employment.
Here is the latest case on the point.
Mr Lewis resigned after a TUPE transfer and claimed unfair dismissal relying on alleged fundamental breaches of contract by his employer and/or on regulation 4(9) of TUPE "(substantial change(s) in working conditions to [his] material detriment”) arising from the introduction of new duties.
The ET rejected his claim that he was to be treated as dismissed on either basis, finding (a) that under his existing contract the employer was entitled to introduce the changes and (b) that the changes were not in breach of reg 4(9).
On appeal the EAT held: (a) that the ET’s finding that under the claimant’s existing contractual terms the employer was entitled to introduce the changes was open to it; but (b) that that finding was irrelevant to the issue under regulation 4(9); and the finding that the changes were not substantial and to the claimant’s material detriment were perverse on a proper application of regulation 4(9), (which can apply even where there is no breach of the employee’s contract of employment.) (See Tapere v South London and Maudsley NHS Trust  IRLR 972).
The Appeal was therefore allowed and the issue of unfair dismissal (on (the reg 4(9) point) remitted to the ET. Lewis v Dow Silicones: UKEAT/0155/20/LA (V)
Employers must therefore think vey carefully before changing employment conditions, even if they are not contractual. Removal of a discretionary bonus or change in non-contractual place of work could result in TUPE claims even if not, strictly, in breach of contract.
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