Constructive Dismissal, TUPE and Subsidiarity

Rossiter v Pendragon plc [2002] IRLR 483; Air Foyle Limited v Crosby-Clarke [2002] EWCA Civ 745 (CA) Charles Wynn-Evans discusses these consolidated appeals, whereby the Court of Appeal considers the ability of an employee to claim constructive dismissal as a result of a substantial change in his/her working conditions to his/her detriment, where such a change is associated with a transfer of an undertaking within the scope of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (‘TUPE’). Quite apart from resolving a potential anomaly between TUPE and non-TUPE cases, the decision raises again the more fundamental question of what precise level of protection the Acquired Rights Directive EC/77/187 (‘ARD’), which TUPE implements into U.K. law, seeks to achieve for employees affected by a qualified transfer. To purchase this publication, contact the Industrial Law Society on +44(0)1 86535 3907.