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Changing the terms of employment following a TUPE transfer

26 Aug 2014

The Employment Appeal Tribunal (EAT0 recently looked at an interesting case, Cetinsoy v London United Busways Limited, involving changes made to working conditions following a TUPE transfer. It looked at when such changes might amount to a constructive dismissal and/or a substantial change in working conditions to the employee’s material detriment under Regulation 4(9) TUPE so as to allow the employee to regard themselves as dismissed.

In this case, as a result of a TUPE transfer, a group of bus drivers were required to change the depot from which they worked.  This involved an increase in the time it took the drivers to travel to work. Two of the drivers resigned at the time of transfer whilst two worked from the new depot for a while and then resigned. Their contracts of employment listed the depots from which they could be required to work and the new depot was not amongst those listed.  It was accepted therefore that the change amounted to a breach of contract but the question was whether that was a fundamental breach (for the purposes of constructive dismissal) or a substantial change to the employee’s material detriment (for the purposes of Regulation 4(9)).

The Employment Tribunal’s conclusion, which was supported by the EAT, was that there was neither a fundamental breach nor a substantial change.

The main basis for that decision was the fact that the list of depots to which the employees could be moved in accordance with their terms of employment included depots which would have been more inconvenient to them than the depot to which they were moved.  The ET also, perhaps surprisingly, noted that an increase of an hour in the time it took to travel to work was not a substantial change in working conditions.

The case is a useful reminder that even if a proposed change is outside the terms of the contract, it will not necessarily amount to a constructive dismissal and/or a substantial change under Regulation 4(9) TUPE.

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