TUPE and office closure

incus432

I wonder if anyone can help me with this query

I work in an office (an NHS employer) and we are likely to be TUPE'd to a new employer in 12-18 months time. The present office will be closed. The new base would be 200 miles away in London. It is unclear if they would open a new local office for those who dont want to move but if so it certainly would not be as easy to get to as the present one.

There is no mobility clause in my contract.

Redundancy would be a good option for me as being over 55 I would be entitled to take early retirement and get my pension unreduced.

However to avoid paying that could they insist on my moving to a new office in the area even if not as convenient?

Could they offer me a job that was completely different? - what counts as a suitable alternative post?

thanks for any advice.

Jarndyce

What is suitable really depends on your skills and experience, and your current job role. It could in theory be completely different and still suitable, on that basis. But in terms of location, certainly moving more than, say 90 minutes travelling away from your current location could be argued unsuitable, as could any major change in your pay or hours, for example.

Hope it works out for you.

getmore4less

What is the reputation of the potential new employer?

If you want out then getting made redundant before the TUPE might be best allthough the way the NHS works to try to fiddle budgets that may not be possible.

lou-28_2

Are they likely to offer voluntary redundancy beforehand? Taking that might be your best bet.

Having been through TUPE twice there was a consultation process each time where we had to meet with HR and our line manager to discuss our options and what we wanted to do. I could choose between TUPE, redundancy or applying for a job in our current office so I opted for the latter. Slightly different scenario to you as our office never closed down but projects and funding were relocated so jobs had to go with them.

I would ask if there will be a consultation process so at least you know you will be able to discuss your options with them in detail.

incus432

Thanks for the replies.
The new employer will be a new Dept Health body being created.

At present we are not being offered VR.

"If you want out then getting made redundant before the TUPE might be best"

Can you clarify why you think this? I have also been told that if your workplace is being shut down as part of TUPE and you do not have a mobilty clause there is a clear redundancy situation if you dont wish to move. I was told there are some relevant ET legal precedents too. Does anyone know of these ?

LittleVoice

incus432 wrote: »

Thanks for the replies.
The new employer will be a new Dept Health body being created.

At present we are not being offered VR.

"If you want out then getting made redundant before the TUPE might be best"

Can you clarify why you think this? I have also been told that if your workplace is being shut down as part of TUPE and you do not have a mobilty clause there is a clear redundancy situation if you dont wish to move. I was told there are some relevant ET legal precedents too. Does anyone know of these ?

For NHS-specific information you would be best to you ask your Union rep as they should either know or be able to get the information from the regional office. They may also know of local agreements on these matters.

incus432

Thanks yes I will be contacting my Union rep, but aleways like to try to be informed first !

I have found the following EAT judgement on a TUPE case (edited). Last para seems most relevant to my situation but am happy to be corrected if any legal mind wishes to comment.

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TAPERE v SOUTH LONDON AND MAUDSLEY NHS TRUST - [2009] UKEAT 0410_08_1908
Ms Tapere worked for Lewisham Primary Care Trust in the Procurement Team based in Camberwell, London. Her employment was transferred to the Respondent, South London & Maudsley NHS Trust under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Her terms and conditions were to remain the same but her place of work changed from Camberwell to Beckenham. Ms Tapere objected to the change in place of work as this increased her journey time by 10 miles and made childcare arrangements more difficult.

Substantial change in working conditions to the employee’s material detriment (Reg 4(9)) - The change in working conditions must be to the material detriment of the employee. “Detriment” should be construed from a subjective point of view ... In other words, the Tribunal should have considered the impact of the proposed change from the employee’s point of view. The questions that ought to have been asked were whether the employee regarded the factors such as disruption to childcare and a longer journey, as detrimental and, if so, whether that was a reasonable position for the employee to adopt. The EAT found that Ms Tapere had been constructively dismissed and was entitled to treat herself as dismissed under Reg 4(9) of TUPE.

As regards whether an employee can claim dismissal under Reg 4(9) TUPE, transferees wishing to use mobility clauses in order to require transferred employees to move location after the transfer are advised to consult employees about the change and listen carefully to their objections (this will be relevant to the employer's fair handling of the matter should it later progress to an unfair dismissal claim). The transferee should consider whether the employee’s position is a reasonable one to adopt. If the transferee requires the employee to move location and the employee decides to treat himself as dismissed (as in the above case), the employee need not give any notice (and there is at that point no obligation on the employer to pay in lieu of notice). The employee will be entitled to claim unfair dismissal and in the majority of cases the dismissal will be for a transfer-related reason and so will be automatically unfair unless the transferee is able to show an economic, technical or organisational reason for it (which may, in fact, be the case).


In a case where the mobility clause does not cover the intended move, or there is uncertainty about this, or where employees raise what appears to be a valid argument that being relocated pursuant to such a clause represents a substantial and detrimental change, the transferee will have no real alternative but to proceed on the basis that the employee is redundant, and undertake appropriate consultations

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incus432

incus432 wrote: »

I have found the following EAT judgement on a TUPE case (edited). Last para seems most relevant to my situation but am happy to be corrected if any legal mind wishes to comment.

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Just to bump and ask if any of our resident legal eagles know of this and have a view ? The implications in TUPE relocations look pretty significant to my untrained eye.

SarEl

I really didn't have anything to add to the excellent advice you have already had. As I often observe - my crystal ball is broken! In other words you are asking for an opinion in advance of something happening. There is no way that anyone could give you advice on such a basis that is worth anything. Mobility clause or not, a new office within a certain distance (roughly 50 miles / 90 minutes) may be deemed a suitable alternative - but every single case is different (and so are the times - that matters), and anyone who tells you that they could give you advice on something that hasn't happened...? Could I interest you in a time share? It's about the same degree of reliability!

incus432

Yes am very grateful for all the advice but no-one had commented on the EAT case, which seems to have quite wide implications. As you say it clearly depends on the individual circumstances but it looks that anyone who can make a case that they see the move as detrimental could claim unfair dismissal (or redundancy) under TUPE.

Jarndyce

As has been said - and without pouring over that case - whether a move is unsuitable depends on the facts of the case. Buit if you are asking whether any detriment renders an alternative job offer unsuitable then the answer is no.

Clearly in your case a move 200 miles is not practicable so they can't force you to do that. But any alternative they offer would have to be looked at on its facts. All you have said is that there might be a new office which is 'not as convenient'. Well a longer journey of say 20-30 minutes would be less convenient, but that does not mean it is unsuitable.

Sorry but that is as much as can be said on a hypothetical basis.