Employment Appeal Tribunal
In deciding whether there had been a substantial change in working conditions "to the material detriment" of the relevant employee under the Transfer of Undertakings (Protection of Employment) Regulations 2006 reg.4(9), the employment tribunal should adopt the approach in Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11, (2003) 2 All ER 26, namely consider the employee's position and ask whether it was reasonable in the circumstances for him or her to adopt that position.
HELD: (1) The words "within the Trust" in the mobility clause could not be regarded as surplus or meaningless. They were plainly words of definition and restricted the relevant geographical area. Moreover, the contract fell to be construed at the time that it was entered into. S had sought to support the tribunal's conclusion by reference to the concept of "substantial equivalence" derived from French v MITIE Management Services Ltd (2002) ICR 1395 EAT. That concept applied where were practical difficulties in implementing a contractual term, but there were no such difficulties in this case, French considered. In the circumstances, T could not be required to move to Beckenham and S had breached her contract when it purported to require her to do so. (2) The two components to reg.4(9) which mattered for present purposes were firstly a "substantial change in working conditions" and secondly a change that was "to the material detriment" of the employee concerned. The tribunal appeared to have adopted the correct approach to the former. The phrase "working conditions" applied to contractual terms and conditions as well as to physical conditions, Merckx v Ford Motors Co Belgium SA (C-171/94) (1996) All ER (EC) 667 ECJ (6th Chamber) applied. Whether or not there had been a change in working conditions would be a simple question of fact. Whether or not it was a change of substance would also be a question of fact and the tribunal would need to consider the nature as well as the degree of the change in order to decide whether it was substantial. In the sense that the employee would not be the arbitrator of whether the change was substantial, it might be said that the approach was objective, but the character of the change was likely to be the most important aspect of determining whether it was substantial. As to the phrase "material detriment", the tribunal had erred in determining the matter as one that had to be objectively determined by weighing T's position against S's and deciding whose position was reasonable. The correct approach was to consider the employee's position and ask whether it was reasonable in the circumstances for him or her to adopt that position, Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11, (2003) 2 All ER 26 applied.
 IRLR 972
William Meade (Senior Clerk)