RR Donnelley Global Document Solutions Group Ltd v Besagni (NSL Ltd v Besagni)

Under the unamended Transfer of Undertakings (Protection of Employment) Regulations 2006, an economic, technical or organisational reason entails changes in the workforce only where the planned change concerns the body of people constituting the workforce. A change in workplace location is not, without more, a change in the workforce. The concepts of workforce and workplace are distinct. Changes in numbers or functions are not necessarily exhaustive: changes requiring additional skills or qualifications may qualify. Dismissals of transferred employees for refusing to relocate therefore remain automatically unfair where no qualifying workforce change is established.

The claimants worked for the London Borough of Barnet in parking enforcement services. Following outsourcing, their employment transferred to NSL Ltd and, for some functions, to RR Donnelley Global Document Solutions Group Ltd. The transferees planned to relocate the work from Barnet to Croydon and Lancing. The claimants refused to relocate and were dismissed.

The Employment Judge held that the dismissals were for economic and organisational reasons connected with the transfer, but that the reasons did not entail changes in the workforce under regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The dismissals were therefore automatically unfair. The employers appealed, contending that relocation could constitute a workforce change.

1. Appeals dismissed. The Employment Judge correctly held that the dismissals were automatically unfair under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
2. The meaning of “entailing changes in the workforce” is determined by the ordinary meaning of the words in context, domestic authority, the 2014 amendment to regulation 7, and relevant European jurisprudence. “Workforce” denotes the body of workers or employees. It is not the workplace, the physical location of work, or an abstract arrangement of work organisation.
3. The principle in Berriman v Delabole Slate Ltd is that the workforce change must be an objective of the employer’s plan, rather than merely a possible consequence. Changes in the identities of employees do not amount to changes in the workforce where the overall numbers and functions remain unchanged. The formulation in Hazel and another v Manchester College describes the relevant changes as changes in actual numbers employed or in the jobs performed.
4. On the ordinary language of the unamended regulation 7, a change in the location where employees work is not a change in the workforce. The express insertion of location changes by the 2014 amendment indicated an amplification of the former meaning. The amendment’s EU compatibility was not an issue for determination.
5. The ETO concept is not identical to redundancy under section 139 of the Employment Rights Act 1996. Some workforce changes may involve additional skills or qualifications even though the jobs remain the same, but that possible category did not assist the employers. The claimants were dismissed for refusing relocation, so the statutory ETO exception did not apply.

• Employment Appeal Tribunal: Appeals from the Employment Judge’s judgment sent on 20 May 2013 were dismissed. The finding that the dismissals were automatically unfair was upheld.