TUPE and constructive dismissal

The recent case of Tapere v South London and Maudsley NHS Trust has established some important principles regarding changes to employment terms following a TUPE transfer.

Such a change may lead to an employee resigning and making a claim for constructive dismissal. Firstly, in deciding whether a change to a contractual term is to the detriment of an employee the change has to be looked at from the employee’s reasonable viewpoint and not by balancing the employer’s and employee’s interests. This brings the law in this area in line with that applied in discrimination cases.

Secondly where pre-transfer terms have been breached it is not a defence to state that the new term is substantially equivalent unless the change in terms presents practical difficulties such as with share options in the transferring company or other contractual benefits such as use of a particular staff gym which have a specific relationship with the transferor.