Employment Contracts: TUPE, Changes & Dismissal

Three consultant child psychiatrists with child care responsibilities have won an unfair dismissal case against the NHS trust that took over their services from a previous provider and tried to make them do out of hours (OOH) on-call work.

Victoria Laakkonen, Sarah Taylor and Mary Cole won their case in the Southampton employment tribunal in July 2012 and have now had their victory upheld by the employment appeal tribunal, whose judgements set precedents for other cases.

The three women had been working part-time for Salisbury Health Care NHS Trust under contracts with an express term that they were not required to do OOHwork.

Oxford Health NHS Foundation Trust successfully tendered to provide child and adolescent psychiatric services for threee areas, including Salisbury, and became the psychiatrists’ employer from April 2010.

The contract awarded to the Oxford trust required it to provide emergency and crisis care 24 hours a day, 365 days a year, and Oxford wanted all 11 consultants in the bigger area to undertake on-call duties. The women would not agree to the change in their conditions.

After carrying out a consultation, which the Southampton tribunal found was “insincere, not genuine and pre-determined”, the Oxford trust served the womne with three months’ notice of dismmisal, coupled with an offer of re-engagement on the same terms as before, except that it included a requirement to do OOH work.

The women accepted the offer under protest and continued to work for the Oxford trust but launched a claim for unfair dismissal, supported by the BMA (British Medical Association).

The psychiatrists’ change of employer from the Salisbury trust to the Oxford trust was covered by TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006), which gives employees the legal right to transfer to the new employer on their existing terms and conditions of employment.

The Oxford trsut argued that some exceptions allowed by the regulations applied, but the Southampton tribunal held that they did not, and the appeal tribunal agreed that the dismissal were unfair.

The Southampton tribunal made an order for the psychiatrists to be reinstated on the pre-transfer terms, including the exemption from OOH duties. It also awarded compensation for unfaird dismissal, but this was set aside by the appeal tribunal.

Points to Note

  • TUPE: in simple terms means an employee can retain their terms and conditions of employment (although there is more to it than this);
  • Changes to a contract of employment should be bilateral not unilateral (at least in theory);
  • Express terms inform both the employer and employee of important ‘clauses’ (in the above case something that the employee cannot do);
  • An employer is legally obliged to send an employee a copy of their contract of employment within two months (eight weeks) of starting any new job/role. It is not sent so that the employee can state they agree with it, however, employee’s can accept under protest. An employee who does not register any protest, either verbally or written, regarding their contract of employment within a reasonable timeframe will be deemed as agreeing to those terms and conditions.
  • Compensation is to mitigate against past or (perceived) future losses regarding loss of employment, it is not there so that individuals can profit financially. In this case the employees continued in their employment and received their salaries, therefore suffering no financial loss.

Source: BMJ 2013;346:f2234.

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