Tuesday, 6 March 2012

TUPE: Substantial Change in Working Conditions

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can a change of location on a TUPE transfer give rise to a claim for constructive, automatically unfair, dismissal?

Yes, says the EAT (Langstaff P) in
Abellio London v CentreWest London Buses.

The 5 claimants in this case worked as bus drivers for CentreWest, which ran the 414 bus route operated from its Westbourne Park depot. This location suited the employees' family circumstances, and where they lived. The route was transferred to Abellio. It intended to operate the route from its own depot in Battersea. It was accepted by the parties that this was a service provision change, and therefore a relevant transfer, under Reg 3(1)(b) of TUPE.

The claimants all had objections to the new location. It affected their travel and domestic arrangements. The new location would mean between 1 and 2 hours extra travelling per day. They resigned. It was held by the employment tribunal that there had been a substantial change to the employees' working conditions to their material detriment under Reg 4(9) of TUPE. The move was additionally a repudiatory breach of contract (in that a mobility clause in the employment contract did not extend to the Battersea location). Therefore the employees were also constructively dismissed for the purposes of Reg 4(11) of TUPE. It followed that the dismissals were automatically unfair, being by reason of the transfer.

The EAT agreed, citing with approval the EAT decision on the same point in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972.

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