The recent case of Abellio London Ltd v Musse1 concerned a six mile change to a place of work for some bus drivers from north to south of the river following a TUPE transfer and whether this change entitled the affected staff to resign.
The claimants in this case were bus drivers on the 414 bus route. They were based at a North West London depot. In their contracts of employment there was a right to move them to any of their employer's work locations as defined in their contracts. The claimants were informed by their then employer that the contract with Transport for London to run the 414 route would transfer to Abellio London Ltd and would be operated from Abellio's Battersea depot in South West London. There was no dispute that this was a 'service provision change' within the meaning of TUPE and that this would transfer the drivers across.
The claimants were disgruntled since the change would extend their working day between one to two hours and they therefore resigned, in the main, on the day of the transfer. Claims were brought as to whether the change amounted to a substantial change to the staff's material detriment (as defined in TUPE) and/or a breach of their terms of employment. The case made its way to the Employment Appeal Tribunal (EAT) who found as follows.
In respect of the substantial change/material detriment argument, the Tribunal was entitled to find that the relocation from North West London to Battersea in South London involved a "substantial" change even though the move was only six miles. The travel conditions to get from north to south got this argument over the line. The EAT commented that it was irrelevant that the claimants' contract had a mobility clause as the relevant provisions of TUPE were concerned with an employee's actual circumstances, not what they could be required to do under their contract. The claimants had made it clear that they regarded the change as detrimental and the Tribunal's decision that the detriment was 'material' was justified given the extension to the claimants' working day.
Worse, there was no defence (commonly called an ETO defence) as the change of location did not also involve a change in the number or functions of employees (key points needed to run an ETO defence).
Even if this was not the case, the tribunal was still entitled to conclude that there was a constructive dismissal by reason of there being a breach of contract as there was no contractual right to relocate the claimants to Battersea. Battersea was of course not listed as a place they could be moved to in their terms of employment as their original employer did not have a base there.
These kinds of decisions leave employers in a difficult position. Whether there is a 'material detriment' appears to be very easy for employees to show and there does not appear to be a defence. So how should employers deal with the risk of making a change of location following a TUPE transfer? If you can, you should try to get the appropriate indemnities from the transferor. If this isn't possible then you should make sure that you thoroughly consult with the employees and, if agreement to the change cannot be reached, consider redundancy (place of work redundancy as they are no longer required in their old place of work) or taking the risk of forcing the move on the basis that you have adequately consulted, meaning that, if they do not agree, any awards made are nominal.