Abellio London Ltd v Musse and ors UKEAT/0283/11CEA & UKEAT/0631/11/CEA

Regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) entitles a transferring employee to treat their contract of employment as terminated where the transfer involves (or will involve) a substantial change in working conditions to their material detriment. In such circumstances they will be treated as having been dismissed by reason of the transfer so that the dismissal is automatically unfair.

In this case, the employment of five bus drivers was to transfer from CentreWest to Abellio under TUPE when Abellio took over operation of the bus route they drove (known as “Route 414”).

As a result of the transfer, the employees’ base depot moved across London from Westbourne Park to Battersea. The employees were informed of this fact by CentreWest prior to the transfer. One employee resigned prior to the transfer and the other four resigned from Abellio on the day of the transfer itself, citing the change in commute as the reason.

Taking in to account the decision in the leading case of Tapere v South London and Maudsley NHS Trust, the EAT upheld the Tribunal’s decision that the employees had been unfairly dismissed under Regulation 4(9).

The EAT rejected Abellio’s argument that Regulation 4(9) did not apply because there was a contractual right to change the employees’ base location and so no contractual term had been breached. The EAT confirmed that Regulation 4(9) claims are distinct from claims of constructive dismissal. Regulation 4(9) refers to “working conditions” rather than contractual conditions, and so no breach of a contractual provision is required. The change in working conditions has a much broader meaning than a change in contractual terms, encompassing changes to physical conditions at work (including base location).

On the issue of whether or not the change to working conditions was to the employees’ material detriment, the EAT confirmed that the Tribunals must consider objectively the effect of the change on a person in the relevant employee’s position. The Tribunal's decision in this case that the detriment was “material” was a justified one, based on its findings that the claimants' day would be extended by between one and two hours because of the increased travelling time.