(i) A change in location was found to be a substantial change to the employees' material detriment
In Abellio London Ltd (formerly Travel London Ltd) v Musse and others UKEAT/0283/11, the EAT has upheld a tribunal's decision that a requirement for bus drivers to relocate six miles, from Westbourne Park (West London) to Battersea (South West London) following a TUPE transfer, was a substantial change in their working conditions to their material detriment pursuant to regulation 4(9) TUPE.
The EAT approved the Tribunal's application of Tapere v South London and Maudsley NHS Trust [2009] IRLR 972, which held that the question of whether there has been a substantial change is a question of fact to be determined by reference to the nature as well as the degree of change, and in considering whether the change is to the employee's material detriment a tribunal has to consider the impact of the proposed change from the employee's point of view and whether the employee is reasonable to view that change to be detrimental.
The EAT held that the tribunal was entitled to find that the relocation was a substantial change, in view of the impact on the employees' travel arrangements and held that it was irrelevant that the contract had contained a mobility clause as the protection in regulation 4(9) TUPE applies to an employee's actual circumstances, not what they could be required to do under their contract. The change would increase the employees' working day by between one to two hours, which in the bus drivers' view, was to their material detriment. The EAT approved the tribunal's finding that this was a reasonable position for the bus drivers to adopt in the circumstances.
Comment: Following this decision, and that in Tapere, transferee employers should be aware that as the question of "material detriment" is to be considered from the employee's perspective, there appears to be a low hurdle for employees to satisfy a regulation 4(9) claim.
http://www.bailii.org/uk/cases/UKEAT/2012/0283_11_1201.html
(ii) EAT rules that TUPE did not apply following a change in the activity being undertaken
The case of Johnson Controls Ltd v Campbell and another UKEAT/0041/12 provides a useful insight into how Tribunals will consider service provision changes.
In this case, Mr Campbell was a taxi administrator, employed by Johnson Controls, and his role was to take bookings for taxis from clients. Over 80% of his duties involved one particular client, the UK Atomic Energy Authority (the "UKAEA"). The UKAEA took the activity of taxi booking in-house and its secretaries were then required to carry out taxi bookings. Mr Campbell argued that his employment had transferred from Johnson to UKAEA on the basis of a service provision change under regulation 3(1)(b)(iii) of TUPE 2006.
This argument was rejected by the Tribunal. The Tribunal considered whether UKAEA was performing essentially the same activity as that carried out by Johnson but found that once UKAEA's secretaries took on the function of booking taxis direct with taxi firms, the centrally co-ordinated service previously carried out by Johnson no longer existed and there had therefore been no service provision change under TUPE 2006.
The EAT has now dismissed Mr Campbell's appeal and in doing so followed the approach taken previously in Metropolitan Resources Ltd v Churchill Dulwich Ltd and another [2009] IRLR 700. It stated that the critical question for the tribunal to decide is what the activity is and to identify what the activity is involves a holistic assessment by the tribunal and cannot be done simply by identifying a list of tasks and assessing whether the majority of those tasks are the same following the transfer.
Comment: This case follows recent EAT decisions which appear to be narrowing the scope of the service provision change aspect of TUPE 2006. While originally the intention of the legislation was to provide certainty/clarity regarding the application of TUPE to outsourcing/insourcing situations, recent cases seem to be undoing this. This particular decision suggests that a significant change to the way in which the service is provided may, when the nature of the activity as a whole is considered, mean there is no service provision change. http://www.bailii.org/uk/cases/UKEAT/2012/0041_12_1402.html
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