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
Thames 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.
Comment
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.
Footnotes
1. The decision in Abellio London Ltd v Musse UKEAT/0283/11 and 0631/11 is available at http://www.bailii.org/uk/cases/UKEAT/2012/0283_11_1201.html.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
