12 March 2012 #Employment
In the recent case of Abellio London v CentreWest London Buses, the Employment Appeal Tribunal (EAT) held that a relocation of 6 miles as a result of TUPE transfer was a substantial change in bus drivers’ working conditions to their material detriment. Accordingly, the EAT found that the bus drivers had been entitled to resign and, as such, could rely on regulation 4(9) and 4(11) of TUPE to claim that they had been automatically unfairly dismissed.
Under the TUPE Regulations employees have the right to object to transferring to a new employer. If they do so, their contracts of employment will not transfer to the transferee and will be terminated by operation of law with effect from the transfer date. However, there is deemed to be no dismissal in such cases unless:
- there is a substantial change to the employee’s working conditions to their material detriment (regulation 4(9)); or
- the employer commits a repudiatory breach and the employee claims constructive dismissal (regulation 4(11)).
In this case, the five claimants were employed by CentreWest as bus drivers on the 414 bus route and were based at a depot in Westbourne Park in West London. In 2009 the contract to run the 414 bus route transferred to Abellio, which constituted a service provision change and hence a relevant transfer under TUPE. Abellio intended to operate the bus route from its depot in Battersea. However, the Claimants objected to the proposed new location on the grounds that it would significantly extend their working day. Consequently, the drivers resigned and subsequently brought unfair dismissal claims against CentreWest and Abellio.
At first instance, the Tribunal accepted that in London a 6 mile relocation from north to south of the river constituted a substantial change to the drivers working conditions and, moreover, an increase in the working day of between 1 and 2 hours was to their material detriment. The EAT upheld this finding.
Accordingly, transferees will have to accept the risk of automatic unfair dismissal claims on a change of location and should seek indemnity protection from the transferor in transfer agreements.