In the recent case of Abellio London Ltd (formerly Travel London Ltd) v Musse and others, the EAT had to consider whether the Tribunal had been correct to conclude that five employees had been unfairly dismissed when they resigned around the time of a TUPE transfer on the basis that the transferee employer required them to change their place of work.
The five employees were originally employed by CentreWest as bus drivers and were based at a depot in West London. They were told by CentreWest in September 2009 that, from 21 November, the contract to run the bus route was to transfer to Abellio London Ltd and that the employees would transfer under TUPE to Abellio and be based at Abellio’s Battersea depot in South West London.
Abellio’s Battersea depot was only six miles from the employees’ current depot but, because of its location in London, it would add one – two hours onto the employees’ commute time each day. The employees resigned and complained that they had been dismissed under Regulation 4(9) of TUPE, because the change in location was a substantial change to their working conditions to their material detriment. The Tribunal upheld their complaint. The change in location was a substantial change to the employees’ working conditions. It was clearly to their detriment and the detriment was material.
Albellio and CentreWest argued before the Employment Appeal Tribunal (EAT) that the Tribunal had erred in its approach to whether the change in working conditions created a material detriment. The EAT however confirmed that the Tribunal had not erred and that, in deciding whether there had been a substantial change to the employees’ material detriment, it was necessary to consider the employee’s perspective, albeit that it must also consider objectively the effect of what has taken place upon someone in that position. Albellio and CentreWest also argued that the employees’ contracts required them to work at any depot and in any event their contracts had been varied when CentreWest advised them of the change in location. The Tribunal rejected these arguments finding that the reference in the employees’ contracts to working at any depot didn’t extend to Albellio’s depots and that there had been no valid variation of their contracts.
As their dismissals were connected to the TUPE transfer and were not for an economic, technical or organisational reason entailing changes in the workforce, the employees’ had been automatically unfairly dismissed.
Impact for employers
- This case is a reminder to employers of the low hurdle which an employee needs to get over to demonstrate that a change to their working conditions is a substantial change to their material detriment.
- Tribunals will focus on the employee’s perspective when addressing the question of material detriment albeit they will also consider objectively the effect of what has taken place upon someone in that person’s position.
- It is only necessary to demonstrate a change to “working conditions” for a Regulation 4(9) claim and there is no need to show a change in contractual terms and conditions (albeit the employees in Abellio could show both).
- A claim under Regulation 4(9) is usually easier to prove than a constructive dismissal claim as there is no need to show that there has been a repudiatory breach of contract, although in most cases where there has been a change to working conditions, employees will bring claims under both Regulation 4(9) and for constructive unfair dismissal.