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TUPE: Relocation and ETO

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Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Is the requirement to work in a different location following a TUPE transfer a 'change in the workforce' within the meaning of the (pre-2014 amendments) TUPE Regulations?

No, held the EAT in NSL v Besagni.The London Borough of Barnet outsourced some of its parking operations and as a result the Claimants' workplace moved from Barnet to Croydon and Lancing. The Claimants refused to move and were consequently dismissed.

TUPE Regulations provide that an employee is automatically unfairly dismissed if they were dismissed because of the 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.

The position is likely to be different following the 2014 amendments to the TUPE Regulations which widen the meaning of 'changes in the workforce' to include changes in location.