Employment Law Advocates

This morning, Daniel Barnett reported on the case of Roydon v Barnetts Solicitors, a decision of the Liverpool Employment Tribunal regarding the new TUPE Regulations. In my view, as far as the finding that there had been a service provision change is concerned, the only surprising thing about it is that anyone is surprised. Even the commentators who have noted its inconvenience to solicitors have not suggested that it is wrong in law and, quite frankly, the Regulations cause just as much inconvenience to employers in plenty of other industries as well.

However, I must declare a personal interest in this case, not because I have a desire to be transferred to a firm of solicitors in Southport, but because some of the more peripheral issues in this case have parallels in a case in which I have been involved and is currently on appeal. In paragraph 45, the Tribunal rejects a submission that a mobility clause in the contract of transferred employees changes in meaning so that references to “offices of the firm” will refer to the new firm and, in paragraph 47, it holds that a change in location is a detriment within the meaning of Regulation 4(9), and consequently an employee is entitled to resign and to claim that he has been dismissed.¬†In my case, the Tribunal came to a different conclusion on¬†both of those issues, hence the appeal.

I think that¬†the Liverpool Tribunal is correct on both points. If a mobility clause really could change its meaning in this way, it would fly in the face of the fundamental principle of contract law that contractual terms cannot be changed without the agreement of the parties. It would be particularly bizarre if this could happen in a TUPE situation, where employees are supposed to be protected from changes even when they do agree to them. Regulation 4(9) contains the words “detriment”, “material” and “substantial”, all three of which echo the language¬†of¬†discrimination law as applied by the¬†House of Lords in the famous case¬†of Shamoon v Royal Ulster Constabulary. The Law Lords¬†set a low bar for the existence of a detriment by establishing a subjective test and it would be surprising if a relocation¬†to another town¬†did not qualify. Anyway, I shall be trying to persuade the Employment Appeal Tribunal of this on 27th May so watch out for the outcome on this blog shortly afterwards.