The Task
On the 12 & 13 March 2015 Rumm Employment Law successfully represented our employee client in an action against Bouygues E&S Infrastructure UK Ltd, a Company with 12,000 employees and a turnover of £1.7 billion. The Damages to be awarded from the Company to our client will be determined at a separate remedy hearing before the Employment Tribunal in May.  

The Transfer of Undertakings (Protection of Employment) Regulations 2006, (TUPE), as amended, protects employees when the business or undertaking for which they work transfers to a new employer. A contract may only be amended at common law in accordance with its terms or with the agreement of the parties. However, in order to protect transferring employees on a relevant transfer, TUPE imposes additional restrictions on an employer's ability to change the terms of employment of transferring employees.

Following the TUPE transfer, the Company sought to impose changes to our client’s terms and conditions in respect of sick pay entitlement, provision of a company vehicle, hours of work, workplace location, job role & duties. The Company also sought to make changes in respect of our client’s salary and holiday entitlement. All of the changes made were to our client’s material detriment and our client considered the implied term of trust and confidence within his employment contract had been fundamentally breached. Our client resigned and submitted claims for unfair constructive dismissal under the Employment Rights Act 1996 and automatic unfair dismissal under Regulation 4(9) TUPE.

Since 31 January 2014, any purported variation to a transferring employee's contract is void if the sole or principal reason for the variation is the transfer itself. The Company was not permitted to make the variations that it had (it did not have a valid defence) and as such the changes made to our client’s terms and conditions in the interests of harmonisation were established to be to his material detriment.

The Outcome

This case serves as a useful reminder to both employees and employers that terms and conditions of employment are protected under the TUPE legislation. Upon the TUPE transfer the incoming employer must meet all the previous terms and conditions of employment (known as the automatic transfer principle) and failure to do so will constitute a fundamental breach of contract.

How can Rumm Employment Law help?
We are able to provide comprehensive legal advice to both employers who are involved in a TUPE transaction and employees who may have had their employment rights infringed as a result of the transfer. For a free of charge consultation regarding how we may be able to assist please get in touch with us on 01892 525 353 or email info@rummlaw.co.uk

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