TUPE and constructive dismissal

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

Does a change of location where the employee is required to work after a TUPE transfer justify a resignation and a claim for constructive dismissal?

Only where this amounts to a fundamental breach of contract or a substantial change in working conditions to an employee's material detriment, held the EAT in Cetinsoy v London United Busways Limited.

In this case bus drivers were employed by CentreWest working out of the Westbourne Park depot. The bus route on which they were employed was transferred to London United Busways. A consequence of the transfer was that the claimants were required to move to Stamford Brook. This was uncongenial to them and they resigned claiming constructive and unfair dismissal. However the employment tribunal, with which the EAT agreed, considered that there was no standing to bring an unfair dismissal claim. Although it was a contractual term that the employees worked out of Westbourne Park and the requirement to work at Stamford Brook was therefore a breach of contract, it was not a fundamental breach of contract.

Furthermore, for the purposes of regulation 4(9) of TUPE the move did not involve a substantial change in working conditions to the employees' material detriment. The addition of between 30 minutes and 60 minutes travelling per day was not, in the opinion of the employment tribunal, substantial or to the material detriment of the employees.

This kind of evaluation, held the EAT, is one based on a factual assessment and could only be set aside if the answer to the question was perverse or had not been approached properly. The EAT considered that the Employment Judge was entitled to come to the view he did, assisted by the practical experience of the employment tribunal lay members.