08.09.14 Three and a Half Mile Relocation not a Substantial Change under TUPE

Under Regulation 4(9) of the Transfer of Undertaking (Protection of Employment) (TUPE) Regulations 2006 employees who believe their terms and conditions have been “substantially” changed to their detriment following a TUPE transfer have the right to terminate their employment and claim constructive unfair dismissal at a tribunal.

It is difficult to determine whether any change in terms and conditions is substantial, however the case of Cetinsoy and others v London United Busways Ltd UKEAT/0042/14 provides some clarity in regards to a substantial change in relocation.

The Employment Appeal Tribunal (EAT) upheld that a three and a half mile relocation of the depot from which the drivers worked did not amount to a substantial change in their working conditions. The bus drivers working in London had a mobility clause detailing “[the Company] reserves the right at any time, without payment of compensation, to require you to work at any of the Company’s work locations as defined in the Contracts of Employment folder.” The bus drivers argued that the station in question, Stamford Brook, was not included in the locations listed following the decision found in the case of Musse and others v Abellio London Ltd and Centre West London Buses Ltd. In this case the EAT held that employees who resigned after being faced with a change of place of work to a difference part of London under a TUPE transfer were constructively dismissed.

However, the EAT upheld the Tribunal’s decision that the journey to Stamford Brook did not place any greater burden on the drivers than other locations that were specified in their contracts. A great advantage to this Tribunal was that it contained two lay members – they were able to contextualise the disadvantage suffered by a move of location in relation to their experience of employment practices. The relocation was not a substantial change and there was no breach of contract. This conclusion meant there was no dismissal either at common law or as provided for under Regulation 4(9).

This case serves as a reminder that each case is decided based on fact and evaluation, and it is important not to purely rely on other case’s decisions.

To read the full case click here.