Was a relocation of three and a half miles following a TUPE transfer a substantial change to an employee's working conditions to their material detriment? No, says the Employment Appeals Tribunal (EAT) on the facts of the case in Cetinsoy and others v London United Busways Ltd.
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the dismissal of an employee before or after a relevant transfer will be automatically unfair if the reason for the dismissal is the transfer itself or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes to the workforce.
Under TUPE a resignation will be deemed to be a dismissal where the employee is resigning due to a substantial change in their working conditions to their material detriment or where the employee claims constructive dismissal as a result of the employer's repudiatory breach of the employment contract.
NOTE: It is important for employers to bear in mind that this case was decided before the new regulation 4(5A) was inserted into TUPE 2006. This regulation specifically identifies a change of location as a potential economic, technical or organisational reason entailing changes in the workforce, and that any dismissals arising will therefore be potentially fair.
The claimants in this case were bus drivers. Following a TUPE transfer, they were required to move to another depot three and a half miles away. Although their contracts of employment contained a clause which reserved the right to move employees to other locations, the depot three and a half miles away was not one of the locations listed.
The employees resigned, claiming that the move to the new depot was a repudiatory breach of contract and that they had been constructively dismissed; or, alternatively, that the move was a substantial change to their working conditions to their material detriment. On this basis, the employees claimed that their resignations should be treated as unfair dismissals.
The Employment Tribunal found that although it was a contractual term that the employees worked out of the original depot, the three and a half mile location change was not a fundamental breach of contract. The move was not a substantial change to the employees' working conditions to their material detriment because the additional 30 minutes it would take the employees to commute was not, in context, substantial.
The claimants appealed to the EAT.
The EAT dismissed the appeals.
The EAT noted that whether or not a change in working conditions was substantial was based on the facts of each case and, as such, the judge was entitled to find that there had not been a substantial change to the employees working conditions to their material detriment and, consequently, that there had been no repudiatory breach of contract.
This case highlights that despite previous tribunal decisions based on similar facts, each case will be decided on its own facts.
It also seems that employees may have to go further than previously thought in order to meet the material detriment test.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.