Abellio London Ltd v Musse & Ors

Under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, “working conditions” are wider than contractual terms and may include the employee’s place of work. Whether a change is substantial is a question of fact, assessed by considering its nature and degree in context. Material detriment is assessed from the employee’s perspective, although the tribunal must evaluate objectively the effect on a person in that position. A significant increase in travelling time may constitute substantial change and material detriment even where the contract contains a mobility clause. TUPE preserves the contract but does not make the transferor and transferee the same employer for contractual variation purposes.

Two conjoined appeals arose from a decision of the Employment Tribunal sitting at London Central on 22 December 2010. Five bus drivers employed by CentreWest on the 414 route resigned when operation of the route transferred to Abellio and their proposed base changed from Westbourne Park to Battersea. The tribunal upheld their claims for automatically unfair dismissal, relying both on regulation 4(9) and on constructive dismissal.

The employers challenged the tribunal’s approach to substantial change, material detriment, contractual mobility provisions and TUPE’s deemed continuity of employment. CentreWest separately challenged the allocation of responsibility for Mr Musse’s claim, because he resigned before the transfer. The central issues were whether the depot change engaged regulation 4(9), whether it constituted a repudiatory breach, and whether Mr Musse had objected to becoming employed by Abellio.

1. Regulation 4(9). The appeals by Abellio were dismissed. “Working conditions” in regulation 4(9) are not confined to contractual conditions. They may include physical conditions and the place of work. Contractual terms are relevant context, but the comparison is between the actual working conditions before and after the transfer ([2012] UKEAT 0283_11_1201, paras 21–24, 33).
2. Whether there has been a substantial change is a question of fact. The tribunal must consider both the nature and degree of the change. A six-mile move within London could properly be found substantial because of its practical effect on commuting and working time ([2012] UKEAT 0283_11_1201, paras 24–26).
3. Material detriment is considered from the employee’s perspective, but the tribunal must assess objectively the effect on someone in that employee’s position. The detriment must be more than trivial or insubstantial. An extension of the working day by about two hours could properly be regarded as material and significant ([2012] UKEAT 0283_11_1201, paras 27–33).
4. The contractual conclusions were also open to the tribunal. CentreWest’s mobility clause referred to locations defined in its contract folder, which did not include Battersea. TUPE preserves continuity of the contract but does not turn the transferor and transferee into one employer or retrospectively make a non-transferor depot a location of the transferor. The tribunal was therefore entitled to find a breach of contract ([2012] UKEAT 0283_11_1201, paras 34–36).
5. CentreWest’s appeal concerning Mr Musse was allowed and remitted. Regulation 4(7) requires an objection to becoming employed by the transferee, not merely an objection to a feature of the proposed employment. The tribunal had not clearly determined whether Mr Musse made that objection, and its findings were inconsistent. The issue was remitted for clarification, alongside the tribunal’s review ([2012] UKEAT 0283_11_1201, paras 38–43).

• Employment Appeal Tribunal: Appeals from the decision of the Employment Tribunal sitting at London Central on 22 December 2010. Abellio’s appeals were dismissed. CentreWest’s appeal concerning Mr Musse was allowed and remitted.