In Abellio London Ltd. (Formerly Travel London Ltd.) v Musse and others, the Employment Appeal Tribunal (EAT) held that a change of location brought about by a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) had created a material detriment for the employees concerned, who were therefore entitled to claim automatic unfair dismissal.
The five claimants in the case had been employed by CentreWest as bus drivers on the 414 bus route operating from a depot in Westbourne Park in London. In November 2009, the 414 route was taken over by Abellio London Ltd. in a transfer that was a service provision change for the purposes of TUPE. CentreWest wrote to the five employees affected advising them that their employment was to be transferred and that they would in future be based at a depot south of the Thames, in Battersea. The employees objected to the transfer because of the effect the move would have on their domestic and travel arrangements. The change of location meant that they would have to spend between one and two hours extra each day travelling to and from work. The employees resigned and claimed that the change of location was a breach of their employment contracts and that the transfer involved a substantial change in working conditions to their material detriment so that TUPE Regulation 4(9) applied and they should be treated as dismissed.
The Employment Tribunal (ET) found in favour of the claimants. In doing so, it followed the approach taken in the case of Tapere v South London and Maudsley NHS Trust and found that the relocation did amount to a substantial change in the working conditions of each affected employee that constituted a material detriment. Furthermore, the ET found that the move was a repudiatory breach of contract which would entitle them to resign and claim constructive unfair dismissal under TUPE Regulation 4(11), as the change of location was not covered by a mobility clause in the drivers’ contracts of employment as this did not extend to Abellio London’s Battersea depot.
Abellio London appealed against the ET’s ruling. The EAT found that the ET was entitled to conclude that the change of location did constitute a substantial change in the drivers’ working conditions that amounted to a material detriment. As they worked shifts, it would often involve them travelling from one bank of the river to the other at inconvenient times of the morning or night, when public transport may not be readily available, thus adding substantially to the length of their working day. The ET had been correct in its approach that what has to be considered is the impact of the proposed changes as seen from the employee’s point of view.
Whilst it did not need to consider the constructive dismissal claim, the EAT found that the ET was entitled to come to the conclusion it did on this issue also.
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