Mr G Lewis v Dow Silicones UK Limited – a lesson in TUPE!

Mr G Lewis v Dow Silicones UK Limited

Mr Lewis (the Claimant) resigned following a TUPE transfer and claimed unfair dismissal as a result of fundamental breaches of contract by his employer and/or on a breach of regulation 4(9) of TUPE arising from the introduction of new standby/call out arrangements and an extension of his duties relating to safety.

The employer was proposing to introduce a fixed number of hours (150) whereby the employees would be on standby/call and they would receive a premium of £9,000 in return. It was argued by the employer that this was not unreasonable as the 150 hours would be covered well within their 37 hour week contracts. This differed to the practice prior to the TUPE transfer where the Claimant regularly carried out voluntary overtime and received a shift and unsociable hours’ allowance to the sum of £10,345.

In addition, the employer sought to bring about adjustments to the operations technicians’ responsibilities in relation to safety. Under the existing routine, operations technicians were not responsible for issuing work control documents for faulty machinery. Instead, the new proposal would see operations technicians, which included the Claimant, issuing “Safe Work Permits” whereby they would undergo compulsory training over a period of 6 months.

The two elements of the claim were considered separately by the Employment Tribunal (ET):

1. Constructive Unfair Dismissal as a result of fundamental breaches on behalf of the employer; and
2. Unfair Dismissal in breach of regulation 4(9) of TUPE.

Constructive Dismissal Claim

The ET that initially heard the case dismissed the claim for constructive dismissal on the basis that the Claimant’s contractual terms allowed the employer to make changes and could determine “work patterns by reference to operational requirements”. Furthermore, under the Contribution Statement it stated that one important responsibility was the “application of safe systems of work … which may include taking on the duties of Safety Controller/Safety Co-ordinator as required by the location manager”. On appeal, the Employment Appeals Tribunal (EAT) upheld the ET’s decision on the basis that the contract permitted these amendments and therefore on these grounds, there could be no constructive dismissal following a breach of contract on the part of the employer.

Regulation 4(9) TUPE Unfair Dismissal Claim

Regulation 4(9) of TUPE provides: “… where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.”

The ET in first instance dismissed the claim citing that the Respondent was contractually entitled to make changes and that the Claimant who regularly carried out overtime already owed those hours. In respect of the additional safety measures, the ET deemed this unsubstantial as it would be within the Claimant’s capabilities with appropriate training.

The statutory framework of Regulation 4(9) was considered in the case of Tapere v South London and Maudsley NHS Trust [2009] IRLR 972 which the EAT relied on in giving its judgment. The main points from that case were as follows:

1. The regulation can apply even where there is no breach of the employee’s contract of employment;
2. Whether there is a change in working conditions and whether it is substantial are questions of fact;
3. The nature as well as the degree of any change needs to be considered in deciding whether it is substantial; and the nature of the change is likely to be the most important aspect in determining this;
4. The question whether a change in working conditions is to the “material detriment” of an employee involves two questions: (a) whether the employee subjectively regarded the change as detrimental and, if so, (b) whether that was a reasonable position for the employee to adopt.

In allowing the appeal, the EAT found that the “fact the employer is contractually entitled to introduce a change in working conditions does not mean it is not a change”. They drew a distinction between the Claimant doing a significant amount of overtime voluntarily and having fixed compulsory standby/on call hours. On the facts, the Claimant had subjectively considered the change detrimental to him and the EAT objectively deemed his view reasonable on the basis of the compulsory nature of the new arrangement which could impact his domestic plans and arrangements.

In respect of the safety adjustments, the EAT concluded that this too amounted to a substantial change, irrespective of whether it was within the Claimant’s capabilities following some training. Overturning the ET’s decision, the EAT determined that the nature of the new responsibilities and the significance of 6 months’ training was objectively reasonable for the Claimant to regard as detrimental.

What can employers learn from this?

Although a contract may include provisions for permitted adjustments to working practices that entitles the employer to make changes to the way work is carried out, employers need to be very careful if the changes to any work arrangements are made or intended to be made subsequently following a TUPE transfer.

If you have any questions about TUPE, or any other employment law matters, get in touch with our expert team of employment lawyers on 01582 514000.