Additional travel time for transferred workers was not "substantial change" to their "material detriment"

Out-Law News | 26 Aug 2014 | 10:39 am | 3 min. read

A change in the working location of somebody who has changed employer through TUPE will only be grounds for a constructive dismissal claim if that change is "substantial" and causes "material detriment" to the worker.

The Employment Appeal Tribunal (EAT) has upheld the decision of an employment tribunal that found that the addition of between 30 and 60 minutes additional travelling time each day in London did not amount to a "substantial" change or "material detriment" to workers, in this case bus drivers whose route was transferred to another operator. This meant that the drivers were not able to resign and claim constructive dismissal.

The judge also found that although the requirement to work out of a different depot was a breach of contract, it was not a "fundamental" one. The transfer of the bus drivers was through the application of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE).

In a recent ruling, the EAT said that the tribunal judge had been entitled to come to the view that he did based on his assessment of the facts. EAT president Mr Justice Langstaff said that the EAT was only able to set aside a tribunal judge's findings in these circumstances if his conclusion was "perverse" or he had not approached the question properly.

"The question whether a transfer involves or would involve a substantial change in working conditions is not asking about contractual terms," he said. "It is asking about a change in the way in which, or the environment in which, people work when comparing the position after the transfer of undertaking with that before. This evaluation is one based on factual assessment."

TUPE protects the rights of employees whose employers are taken over by new owners; or where work is outsourced, brought back in-house or there is a change in service provider. Under TUPE, an employee's resignation is deemed to be a 'dismissal' where it is done in response to a substantial change to the employee's working conditions to their material detriment. This can also occur due to a repudiatory breach of contract by the employer, meaning one which effectively nullifies the contract.

The claimants in this case were a number of London bus drivers previously employed by CentreWest and working out of the firm's Westbourne Park depot. When the bus route on which they were employed was transferred to London United Busways, the drivers were required to move to a depot which was three and a half miles away at Stamford Brook. Although the drivers' contracts contained a mobility clause requiring them to work "at any of the company's work locations", this only applied to CentreWest locations before the transfer took place.

In a case in 2012 involving the same former employer, Mr Justice Langstaff found that a change in location could be a substantial change in working conditions depending on the facts. In the 2012 case, drivers were transferred from Westbourne Park to Battersea and in some cases had an additional two hours' travelling time each day. However, the judge said that it did not necessarily follow from the earlier judgment that any change in base depot would be caught by the TUPE prohibitions.

"The facts of [the 2012 decision] are the facts of another case: what matters when considering a previous decision, particularly where the central findings are those of fact and evaluation which are to be determined by the particular circumstances of the individual case before the tribunal, if the principle which has been applied rather than the facts which are merely illustrative of the application of that principle to that particular case," he said.

"The principle in [the 2012 decision], so far as this part of the argument is concerned, was not that in law a change of location for a bus driver was substantial, but rather was that the judge in that case was entitled to come to the view on the facts of that case that there had been a substantial change. We have to apply essentially the same principle: there is no error if it was within the entitlement of the judge to come to the conclusion of fact and evaluation he did on the facts of this case. We think that it was," he said.

Although aspects of the tribunal judge's approach could be criticised, these did not "affect the factual conclusion as to whether there was a substantial change", Mr Justice Langstaff said.