Tuesday, September 29, 2009

TUPE, employment law

The claimants (Royden et al) were employees of Lees Lloyd Whitley (LLW), a firm of solicitors based in Birkenhead that carried out conveyancing work for Britannia Building Society (Britannia).

 

When the contract came up for renewal, Britannia awarded the contract for that work to Hammonds Direct.

 

The claimants had all carried out work for Britannia as part of the conveyance department at Lees Lloyds Whitley.

 

Once it was confirmed Britannia k would be moving the work to Barnetts, it wrote to the LLW employees to confirm what would happen to those who had been involved in the Britannia work.

 

The claimants were offered the opportunity to move to one of Barnett’s’ or Hammond Direct’s offices. The only location the claimants would realistically consider was Southport, although they were reluctant to work there.

 

The employees then contended there had been a transfer of the undertaking in which they worked to Barnetts and the instruction that they should work in the Southport office was a fundamental breach of their contracts.

 

The Employment Tribunal held that there had been a service provision change and that those employees who had been assigned to the relevant activities had been unfairly dismissed as the transfer involved a substantial change in working conditions to their material detriment. Given the then location of the relevant claimants’ homes, working at Southport would be a material change to their working conditions and would cause them a material detriment.

 

The Tribunal also held that Barnetts had failed to comply with its obligations under TUPE to consult those affected employees in connection with the transfer.

 

This case is a further demonstration of the ‘service provision change’ test under TUPE.

 

Where practical, companies involved in a competitive tender process should review whether there are any employees who spend more than 50% of their time working on the service: there is likely to be a risk that TUPE will apply and operate to transfer their contracts to any new service provider.

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