Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) outsourcing a service or part of a service can constitute a TUPE transfer. This is called ‘a service provision change’. Where such a transfer takes place, if an employee’s working conditions are changed to their material detriment then the employee may be entitled to resign and bring claims.
Whether or not there is a change in working conditions will be a simple question of fact. An Employment Tribunal will consider the nature as well as the degree of change in order to decide whether it is substantial and whether it is a material detriment.
In a case examined recently by the Employment Appeal Tribunal (Abellio London v CentreWest London Buses) the affect of changing the workplace location was considered and whether this amounted to a material detriment.
The case involved 5 bus drivers who worked for a bus company (CentreWest) that ran a particular route in London. They all worked from the company’s Westbourne depot. This location suited the employees’ family circumstances, and where they lived. The route was transferred to Abellio. This was a service provision change and TUPE applied. Abellio intended to operate the route from its own depot in Battersea. The bus drivers all had objections to the new location and raised grievances in this respect. They argued it affected their travel and domestic arrangements as the new location would mean between 1 and 2 hours extra travelling per day. They resigned on the date of the transfer and brought claims for constructive, automatically unfair dismissal on the basis that their dismissals were related to a TUPE transfer.
The original contracts of employment allowed CentreWest to transfer employee’s to other depots (i.e. it had a mobility clause). However, these depots were listed in a separate document relating to terms of employment and Abellio’s Battersea depot was not listed within this document.
It was held by an Employment Tribunal that there had been a substantial change to the employees’ working conditions to their material detriment. The move was additionally a repudiatory breach of contract (in that a mobility clause in the employment contract did not extend to the Battersea location). Therefore the employees were also constructively dismissed and that the dismissals were automatically unfair, being by reason of the transfer.
The Employment Appeal Tribunal agreed and upheld the original Employment Tribunal decision.
If it is possible that the work location or other working conditions may be altered after a TUPE transfer, then it is best to seek advice about how to minimise the risk of claims. Whether a material detriment arises will depend on the facts of each case. In this case, the fact that the move was only 6 miles away from the original depot was considered in the context of the employee’s having to travel within London to an area with limited parking and also travel at unsociable hours for their shift when public transport would have been unavailable to them. This meant the change was detrimental and meant their claims were successful.
Pure Employment Law are specialists in the tricky issues that arise in relation to TUPE transfers. If you would like advice on TUPE, or any other aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected].
For advice on this or any other aspect of employment law, please contact any member of the Pure Employment Law team on 01243 836840 or [email protected].