Case update (3): TUPE – change of location

Summary: Does a change of location where the employee is required to work after a TUPE transfer justify a resignation and a claim for constructive dismissal?

No, as long as the relocation is not too far says the EAT in the case of Cetinsoy and others v London United Busways Ltd available here

Background: Under TUPE 2006 an employee’s resignation is deemed to be a “dismissal” where it is in response to: (i) a substantial change to the employee’s working conditions to their material detriment; (ii) an employer’s repudiatory breach and the employee claims constructive dismissal.

This case looks at what amounts to a substantial change.

Facts: Four employees were employed by CentreWest as bus drivers on the number 10 bus route. They were based at CentreWest’s Westbourne Park depot. Their contracts contained a mobility clause under which CentreWest reserved the right to move the employees to any of its work locations, as defined in its contracts of employment folder.

The four employees were moved to another depot three and a half miles away. This added up to 30 minutes to their commute each way. The employees resigned and brought claims on the basis that the move to another depot amounted to (i) a substantial change to their working conditions and (ii) a repudiatory breach entitling them to a claim for constructive dismissal.

The EAT agreed with the Tribunal that a relocation of three and a half miles following a TUPE transfer was not a substantial change to the employee’s material detriment, nor was it a repudiatory breach of contract. The transfer to the other depot placed no greater burden on the employees than a transfer to the other depot locations to which they could have been relocated in accordance with their contracts. The move did not amount to a ‘substantial change’ as their jobs were preserved at a location more convenient to them than the other locations to which they could have been required to move. In addition, given that the maximum commuting time would be 30 minutes each way, the increases were relatively slight when viewed against the potential loss of their jobs.

Implications: This is encouraging news for employers considering relocating staff on a TUPE transfer. However, it is worth noting that each case must be decided on its own particular facts. In our April 2012 Newsflash Beware reluctant relocations on TUPE transfers we updated you on the case of Abellio London Ltd (formerly Travel London Ltd) v Musse and others. In this case bus drivers were relocated in similar circumstances to a bus depot six miles away which would add up to one hour to their commutes each way. The bus drivers were this time successful in their claims for (i) a substantial change to their working conditions and (ii) a repudiatory breach entitling them to a claim for constructive dismissal.

There is room for cautious optimism that an employer’s position has been strengthened since the facts of this case, as the TUPE amendment regulations inserted a new regulation 4(5A) into TUPE 2006 to specifically include change of location as a potential ETO reason. For more information on this see our January 2014 Newsletter Government reforms (1): TUPE changes.

Given the complexities of the law in this area, particularly the uncertainty as to how far an employer can relocate staff following a TUPE transfer, please do not hesitate to contact Luke Menzies at luke@menzieslaw.co.uk or 0845 113 0150 or any other member of the team.