Breach of working conditions can ground a claim for constructive dismissal under TUPE even if the breach concerned is not a breach of contract.

The Employment Appeal tribunal has held an employee can, when TUPE applies, claim constructive dismissal where a breach of working conditions took place, without having to show. In non-TUPE case there has a fundamental breach of contract by the employer.

In Lewis v Dow Silicones: UKEAT/0155/20/LA (V) Mr Lewis resigned after a TUPE transfer and claimed unfair dismissal relying on alleged fundamental breaches of contract by his employer and/or of regulation 4(9) of TUPE “(substantial change(s) in working conditions to [his] material detriment”) arising from the introduction of new duties. The ET rejected his claim that he was to be treated as dismissed on either basis, finding (a) that under his existing contract the employer was entitled to introduce the changes and (b) that the changes were not in breach of reg 4(9) On appeal the EAT held: (a) that the ET’s finding that under the claimant’s existing contractual terms the employer was entitled to introduce the changes was open to it; but (b) that that finding was irrelevant to the issue under regulation 4(9); and the finding that the changes were not substantial and to the claimant’s material detriment were perverse on a proper application of regulation 4(9), (which can apply even where there is no breach of the employee’s contract of employment.) (See Tapere v South London and Maudsley NHS Trust [2009] IRLR 972).

The Appeal was therefore allowed and the issue of unfair dismissal (on (the reg 4(9) point) remitted to the ET. HHHJ Shanks usefully summarised some points of interpretation from the case law: “Regulation 4(9) was considered by the Employment Appeal Tribunal in the case of Tapere v South London and Maudsley NHS Trust [2009] IRLR 972; the following propositions from that case are not contentious: (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 (or “character”) 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”.