Beware of Relocations Under TUPE

A change in location of no more than six miles in the context of a service provision change under TUPE was enough to give rise to successful unfair dismissal claims, held the EAT in Abellio London Limited v Musse and others UKEAT/0283/11.

The Claimants were bus drivers operating the 414 bus route in London. Following a service provision change under TUPE, they were relocated 6 miles from a depot in west London to a depot in south-west London. The relocation extended the employees' working day from between 1 to 2 hours. All five drivers resigned and claimed, among other things, automatic unfair dismissal under Regulation 4(9) of TUPE on the basis of a substantial change in working conditions to their material detriment.

The EAT found in favour of the employees. The relocation may only have been six miles but, in London, this amounted to a substantial change to the employees' material detriment. It was irrelevant that their employment contracts contained a mobility clause; "working conditions" in Regulation 4(9) of TUPE referred to the employees' actual circumstances, not what they could be required to do under their contracts. Furthermore, the EAT held that "material detriment" should be considered from the employees' perspectives.

This gives employees significant scope to bring constructive dismissal-type claims in connection with TUPE transfers where a relocation amounts to a "substantial change in working conditions to [their] material detriment". In light of such claims, outgoing employers are advised to seek indemnity protection in their contractual arrangements with the new employer.