16 Mar 2012

Tribunal rules TUPE can cover change of garage

A tribunal has ruled that a change of work location (in this case bus garages) under TUPE transfer can give rise to automatic unfair dismissal. In its decision, the Employment Appeal Tribunal said that five bus drivers who were transferred to a depot that would require up to two hours' extra travel each day could claim they were dismissed unfairly under rules designed to protect workers when their contracts are transferred to another employer.  
The drivers resigned when their employment with CentreWest, which operated the 414 bus route from its depot in the Westbourne Park area of London, was transferred to Abellio, which intended to run the service from its existing depot in Battersea. This resulted in between one and two additional hours extra travelling per day for each of the affected employees.  

The rights of employees are protected under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) when their company is taken over by a new owner or the work that they provide is outsourced, brought back in house or there is a change of service provider. 
Under TUPE employees may treat an employment contract as terminated when a transfer which is caught by the regulations results in a "substantial change in working conditions" to their "material detriment".
The regulations recognise that in some cases a clause in an employment contract cannot be implemented after the transfer with "precisely the same benefits and obligations" as they had previously, Mr Justice Langstaff said. However, in those cases "equivalent" benefits and obligations can be substituted "so long as neither the benefit nor burden is increased".  

Westbourne Park
The judge said that the Westbourne Park depot suited the "particular family circumstances" of the affected employees. Although the six mile move might not have appeared substantial in a more rural or suburban setting, "bearing in mind the travel conditions involved" it amounted to a substantial change. With regards to the second limb of the test, it could be shown that the change was to the employees' detriment "simply by asking whether the change was to the employee's advantage, to which the response would have to be plainly not". "[T]ravelling at varying hours of the day, often at inconvenient times of morning or night on shift work, when public transport may not be easy... is entirely appropriate to be regarded as a significant and material change to the detriment of the employee," he said.

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