Labour & European Law Review Weekly Issue 390 08 October 2014
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) state that if a relevant transfer involves a “substantial change” in the working conditions of someone being transferred, they can claim automatic unfair dismissal. In Cetinsoy and ors v London United Busways Limited, the Employment Appeal Tribunal (EAT) held that requiring London bus drivers to move to a depot three and a half miles away did not constitute a “substantial change”.
A number of route 10 bus drivers who worked for CentreWest out of Westbourne Park depot were told that the route was being transferred under TUPE to London United Bus-ways on 30 January 2010. As a result the drivers would have to change depot from Westbourne Park to Stamford Brook, three and a half miles away.
Although their contracts contained a mobility clause allowing their employer to move them to a number of specified locations, the list of depots did not include Stamford Brook. Two of the drivers resigned on 30 January, while two others worked until the beginning and end of April respectively before resigning.#
They all claimed that the change constituted a repudiatory breach of contract which entitled them to bring claims of constructive dismissal. In addition, they argued that the transfer to another depot involved a substantial change in their working conditions to their matterial detriment and they had been automatically unfairly dismissed by London Busways under regulation 4 of TUPE.
Regulation 4 states that “… where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1) such an employee may treat the contract of employment as having been terminated and the employee shall be treated for any purpose as having been dismissed by the employer."
The tribunal ruled that the change of location did not amount to a substantial change to the working conditions of the drivers. Although there had clearly been a change, he extended journey to work times were not substantial (30 minutes on average at the beginning and end of the day) and did not amount to a material detriment.
The tribunal also rejected a claim for constructive dismissal. Although it found that the employer had acted in breach of contract because the mobility clause only provided that they could be moved to one of five locations specified in their contracts (which did not include Stamford Brook, a depot of the new employer), the breach was not fundamental.
Although the EAT questioned some of the judge’s conclusions in relation to the breach of contract, it agreed that the breach was not repudiatory and that therefore the claimants had not been constructively dismissed. Nor did it constitute a substantial change to the material detriment of the drivers under regulation 4 of TUPE.
It held that the question as to whether a transfer involves a substantial change in working conditions is not determined by the terms of the contract. Instead it is determined by whether there has been a change in the way in which, or the environment in which, people work pre and post transfer. That evaluation can only be done by factual assessment and accordingly could only be set aside if the answer to the question was perverse or if the tribunal judge had not approached it properly.
In this case the depot to which the drivers had been redeployed was in fact more convenient than the ones to which they could have been redeployed under their contract. The tribunal was therefore entitled to come to the conclusion that it had.
This decision is in contrast with the earlier decision of Abellio London Ltd v Musse (weekly LELR 267). In that case the EAT held that drivers who transferred to another de-pot which resulted in an increase in travelling time of up to two hours did suffer a substantial change to their material detriment and so were held to have been automatically unfairly dismissed. Ultimately whether a change in location following a transfer amounts to a substantial change to their material detriment and so automatically unfair will depend on the facts of the case.