Is a change in the workplace considered to be a change in the workforce?

The Employment Appeals Tribunal (EAT) has recently been asked to consider whether the requirement for an employee to work in a different location following a transfer was considered to be a “change in the workforce” within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) before they were amended in 2014.

In the case of NSL Limited v Besagni and others it was held that a requirement to work in a different location did not constitute a “change in the workforce”.

The London Borough of Barnet outsourced some of its parking operations and as a result the Claimants’ place of work moved from Barnet to Croydon and Lancing. The Claimants refused to move and were then dismissed.

In accordance with the TUPE Regulations 2006 (as they were at the time to which this claim relates) an employee is automatically unfairly dismissed if they are dismissed because of a transfer or for a reason connected to the transfer that is not an economic technical or organisational reason entailing changes in the workforce.

The EAT confirmed that in accordance with Berriman v Delabole Slate Ltd [1985] ICR 546 the phrase “changes in the workforce” does not include a change in the workplace.

This decision was made on the basis of the TUPE Regulations 2006 and it is possible that following the amendments that came into force in 2014 the outcome could be different if this question were considered again. The amendments to the Regulations act to widen the meaning of “changes to the workforce” and could include changes in location.

If you have been dismissed following a transfer under the TUPE Regulations for example where your job has been outsourced or another company has taken over your current employer please contact the dedicated employment team at Michael Lewin Solicitors and we will be happy to discuss your situation with you.

Anthony Fox


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