Mr Lewis worked at the Combined Heat and Power Plant in Wales as one of ten operations technicians. He started his employment in June 1999. Originally, he was employed by Npower. Dow Silicones bought the plant in 2013 and the staff were outsourced to Engie Renewals Ltd, who became Mr Lewis’s employer. In 2017, Dow decided to bring in (insource) the staff, meaning staff were transferred from Engie to Dow under TUPE.
Dismissal
Dow had always intended to change the working arrangements to harmonise the terms and conditions. Amongst the changes, was the introduction of standby and call-out rota and new job responsibilities. Mr Lewis objected to these changes, arguing that the new arrangements were a fundamental breach of contract and a substantial and detrimental change. He resigned in March 2018 claiming unfair constructive dismissal and/or TUPE related dismissal.
At first instance, the Employment Tribunal decided that there had been no dismissal and rejected the claim. He appealed to the Employment Appeal Tribunal (EAT) claiming that the decision was perverse. In relation to the claim for breach of contract, the EAT ruled that the ET had made a decision based on the evidence available at the time, and so rejected this ground for appeal. They ruled that the changes were not fundamental, because Mr Lewis’s contract of employment contained express clauses to allow changes.
False reasoning
However, in relation to the TUPE related dismissal claim, the EAT felt that the ET decision was based on false reasoning. The ET had overlooked the fact that something does not stop being a change simply because an employer has a contractual right to introduce it. In this case, the introduction of a new rota meant overtime became compulsory, not voluntary as before, and this was a substantial change. Even though he had voluntarily worked overtime before, making it mandatory was a serious and unlawful change, and his argument was reasonable. He was entitled to treat his contract as being terminated and was to be treated as having been dismissed by the employer. The EAT remitted the TUPE related unfair dismissal claim back to the original ET to determine.
The clear message is that when you take over employees following a TUPE transfer, the employer cannot rely on the terms of a contract of employment containing express right to make changes, to introduce changes. This article intended for guidance purposes only, and employers are urged to seek professional HR advice before contemplating actions. Call us on 01455 852028.
