Employment Law Solicitors Michelmores
Bethan Jones
Posted on 26 Aug 2014

Employment Law Monday Update - 26 August

Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!

Change in Location following TUPE Transfer

Cetinsoy and others v London United Busways Ltd [UKEAT/0042/14]

Background

A dismissal of an employee before or after a TUPE transfer will be automatically unfair where the sole or principal reason for the dismissal is the transfer itself, or a reason connected with the transfer (that is not an economic, technical or organisational reason entailing changes in the workforce, or 'ETO' reason).

The TUPE regulations deem an employee's resignation to be a 'dismissal' where it is in response to a substantial change to the employee's working conditions, to their material detriment, or an employer's repudiatory breach, and the employee claims constructive dismissal.

The Facts

The four claimants were employed as bus drivers on the number 10 bus route, and were based at the Westbourne Park depot. Their contracts of employment contained a mobility clause which gave their employer the right to move them to any of its work locations, as defined in its  'contracts of employment folder'.

From 30 January 2010, the claimants' employer transferred the number 10 bus route to London United Busways ('LUB') and the claimants were required to transfer from Westbourne Park to LUB's Stamford Brook depot 3.5 miles away, which was not referred to in the 'contracts of employment folder'. The claimants were not happy about the change in location, which extended their working day by up to an hour, and therefore resigned. They brought claims for unfair dismissal, claiming the relocation was a repudiatory breach of contract and they had been constructively dismissed or, alternatively, it was a substantial change to their working conditions to their material detriment, entitling them to resign and be treated as dismissed.

Judgment

The Employment Tribunal dismissed the claimants' claims. It considered that the transfer to Stamford Brook placed no greater burden on the claimants than a transfer to the other depot locations to which they could have been relocated in accordace with the 'contract of employment folder'. Further, the additional commuting time as a result of the relocation was, in context, not substantial. The claimants appealed to the Employment Appeal Tribunal ('EAT')

The EAT dismissed the claimants' appeals. It held that there had been no repudiatory breach of contract to support a claim for constructive dismissal, and no substantial change to the claimant's material detriment.

The EAT commented that the evaluation of whether a change in working conditions was substantial was a factual assessment for the Tribunal to make and could only be set aside if the decision was perverse or had not been approached properly. In this case, the Employment Tribunal had approached the issue correctly and was entitled to reach the decision it had.

Tips for Employers

The decision highlights that each case of alleged 'substantial change to an employee's detriment' will need to be decided on its own facts. Nevertheless, this decision may be beneficial to employers as it suggests that the material detriment test for employees may be higher than previously thought.


New Apprenticeship Standards Published

The Government has published 40 new apprenticeship standards, which are designed to be more rigorous and responsive to the needs of employers. These have been designed by a selection of employers in sectors such as engineering and hospitality.

For more information, please follow the link: http://www.apprenticeships.org.uk/standards