Right to vary terms did not prevent constructive dismissal claim

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Mr G Lewis V Dow Silicones UK Ltd  

An employee may claim they have been constructively dismissed if the employer is in fundamental breach of contract. Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) an employee can also claim constructive dismissal if subject to substantial changes in working conditions which is to their material detriment. The case of Mr G Lewis V Dow Silicones UK Ltd highlights the differences and particularly how there is a greater risk of a claim on a transfer. 

Employee resigned when following a transfer 

Mr Lewis worked as an operations technician. He was subject to a collective agreement which provided that management would determine “work patterns by reference to operational requirements” and that employees would be “ … expected to undertake duties and responsibilities commensurate with their grade and competency.” Me Lewis resigned when following a transfer the new employer sought to rely on these provisions to change working hours and to introduce new safety responsibilities. 

It was held that under TUPE that the employee may have been constructively dismissed

It was  held that under TUPE even where there was no fundamental breach of contract an employee may have been constructively dismissed. The test was simply whether there had been substantial changes in working conditions and whether these were to the employee’s material detriment. The fact the employer had a contractual power to make changes did not mean that the changes were not substantial or that there was no detriment to the employee. The contractual position was not the test.

Key takeaway points

As the contractual terms meant the employer was entitled to introduce the changes there would be no fundamental breach and the employee would normally be unable to establish that they have been constructively dismissed. However, the protection under TUPE is considerably wider. In practice, the nature and degree of any change needs to be taken into account, even if authorised, and consideration given to whether the employee would reasonably believe that the change was detrimental to them. 

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