TUPE Update – Mobility Clauses
29 October 2009
The Court of Appeal found that employees relocated under TUPE may be able to claim constructive dismissal where a mobility clause refers only to the transferor’s (old employer) work sites or where the change causes material detriment from the employee’s viewpoint, such a mobility clause does not expand to cover TUPE.
The EAT confirmed that although the test for substantial change is an objective question of fact, the test for detriment is subjective. Therefore transferees facing this situation may have to consider making redundancies where employees are unwilling to relocate. They may also face automatic or ordinary unfair dismissal claims.
There is currently a case which is being appealed where the ET suggested that relocation may not be an economical, technical or organisational defence to automatic transfer-connected unfairness. In the meantime, it is best to always seek advice on individual cases where TUPE applies.