I was delighted to discover last week that a case I conducted, Tapere v South London and Maudsley NHS Trust, which I discussed in this post, has been reported in the Industrial Relations Law Reports at [2009] IRLR 972. It was analysed by Michael Rubenstein in his ‘Highlights’ section but I must admit that I found his reasoning rather odd.  He said, ‘However laudable such a purposive interpretation, the result of this reasoning can be seen as rather harsh in this case and could create practical difficulties more generally. A TUPE transferee is in no more advantageous position in respect of contractual rights than the transferor, but he is in no worse position either. If there had been no TUPE transfer, given the mobility clause, it is hard to see how the locations to which an employee could be sent would be frozen as at the time they entered the employment. If the locations operated by the PCT expanded, that would “increase the scope of the geographical area in which the employee could be required to work.” Why should the same principle not apply in respect of the locations operated by the transferee?‘

This is a weak analogy and, moreover, a similar suggestion could be made for most contractual terms protected by TUPE. For example, it is easy to see how a personal assistant role could evolve slowly over time into a general administrative role but it does not follow at all that a transferee could refuse to employ a personal assistant and offer her a job in administration instead, for three reasons. Firstly, in the former case, the changes have happened slowly over time, giving the employee time to adapt to them. Secondly, in the former case, there has clearly been agreement, either express or implied, to the changes. Finally, and most crucially, it is of enormous significance whether the changes are made for a reason related to the transfer. This is why the TUPE Regulations were originally enacted, after all.

As for practical difficulties, what no commentator seems to have realised, perhaps because it was not necessary to decide the case, is that there were, as a matter of fact, no practical difficulties in Tapere at all. The transferor and the transferee were both NHS Trusts with a close relationship. They frequently did work for one another (hence the service provision change) and they often allowed one another to use their property. This is how the claimant was able to remain at her old place of work for six months after the transfer and there would have been utterly no impediment for her to have continued to do so.

A harder situation which might arise under TUPE would be if there was a transfer between entities that did not share any property. However, the appropriate non-TUPE analogy would be with the closure of a place of work and its reopening some miles away. In such a case, best practice would be to make the employees who do not want to move redundant and any of them who unreasonably refused alternative employment would lose their entitlement to redundancy payments. An employer that forced employees to move outside the scope of their employment contracts would expect to face claims for constructive unfair dismissal. This approach has commendable flexibility because it encourages employers to offer a variety of alternatives, avoiding the very real problem that employees have no choice about the effects of TUPE. It also prevents TUPE from being misused as a mechanism to avoid redundancy payments.

A possible objection is that such a redundancy would be a dismissal related to the transfer to which my answer would be that, following Tapere, so would a unilateral variation of a mobility clause. However, TUPE allows such a dismissal if for an economic, technical or organisational reason entailing changes in the workforce. It is easy to see how a redundancy situation caused by employees not wishing to move location can entail such changes but it is more difficult to see how a change of location alone can do so.