Change in Work Location was Substantial Change to Employees’ Material Detriment

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Posted on 27 Mar 2012

A relocation of six miles because of a TUPE transfer was a substantial change in bus drivers’ working conditions to their material detriment, entitling them to resign and claim automatic unfair dismissal.  

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, a resignation in circumstances where there has a been a substantial change in working conditions to an employee’s material detriment is deemed to be a dismissal.  The dismissal will be automatically unfair where the sole or principal reason for it is the transfer itself, or a reason connected to the transfer which is not an economic technical or organisation reason entailing changes in the workforce (“ETO reason”).

In Abellio London Ltd v Musse, the claimant bus drivers worked out of CentreWest’s Westbourne Park depot on the 414 route.  That route transferred to Abellio and was operated out of Abellio’s Battersea depot.  The claimants were concerned about the change in location as it would extend their working day by between one and two hours and they resigned, claiming a substantial change in their working conditions to their material detriment.

The tribunal upheld their claims and the EAT agreed.  The relocation from Westbourne Park to Battersea involved a “substantial” change in their working conditions.  Although it was only a move of six miles, a move from north to south of the river, bearing in mind the travel conditions involved, was a substantial change.   In considering whether a change is to an employee’s material detriment it is necessary to consider the impact of the change from the employee’s viewpoint and the tribunal had been entitled to find that the increase to the claimants' working day was a material detriment for them.

The decision in this case demonstrates how easy it is for employees to resign and claim automatic unfair dismissal where a transferee employer needs to make changes to working conditions. There is no need to show that the employer has breached the employment contract, just that there has been a substantial change in working conditions which they reasonably regard as detrimental – and the hurdle has not been set high. 

In most cases of this kind the employer will not have a defence to an unfair dismissal claim as the change in working conditions will be by reason of the transfer and so the resulting dismissals will be automatically unfair. 

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