When there is a TUPE transfer there are often changes that the new employer wishes to make and one of the common changes is a change of location where the employee is required to work.
In the recent case of Cetinsoy v London United Busways Limited the EAT considered the question of whether a change of location where the employee is required to work after a TUPE transfer can justify a resignation and a claim for constructive unfair dismissal? The EAT decided that only where the change of location amounts to a fundamental breach of contract or a substantial change in working conditions to an employee's material detriment will it justify an employee resigning and claiming constructive unfair dismissal.
In this case bus drivers were employed by CentreWest working out of the Westbourne Park depot. The bus route on which they were employed was transferred to London United Busways. A consequence of the transfer was that the claimants were required to move to Stamford Brook. They resigned claiming constructive and unfair dismissal. However the employment tribunal, with which the EAT agreed, considered that there was no standing to bring an unfair dismissal claim. Although it was a contractual term that the employees worked out of Westbourne Park and the requirement to work at Stamford Brook was therefore a breach of contract, it was not a fundamental breach of contract.
Furthermore, for the purposes of regulation 4(9) of TUPE the move did not involve a substantial change in working conditions to the employees' material detriment. The addition of between 30 minutes and 60 minutes travelling per day was not, in the opinion of the employment tribunal, substantial or to the material detriment of the employees.
This kind of evaluation, held the EAT, is one based on a factual assessment and the employment tribunal’s decision could only be set aside if the answer to the question was perverse or had not been approached properly by the employment tribunal. The EAT considered that the Employment Judge was entitled to come to the view he did, assisted by the practical experience of the employment tribunal lay members.
This decision is beneficial to employers since it suggests that the material detriment test for employees to overcome to satisfy a regulation 4(9) claim under TUPE may be higher than commentators had considered after an earlier case. It should also be borne in mind that the Amendment Regulations inserted a new regulation 4(5A) into TUPE 2006 to specifically include change of location as a potential economic, technical or organisational (ETO) reason, potentially strengthening an employer's position in this situation further.