Centrewest London Buses Ltd v Musse & Ors

Under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, “working conditions” extend beyond contractual terms and include the practical place and circumstances of work. The relevant comparison is between the employee’s actual working conditions before and after the transfer. A substantial change is assessed by its nature and degree. Material detriment is considered from the employee’s perspective, while the tribunal objectively assesses the effect on a person in that position. A substantial increase in commuting time may constitute material detriment even where the contract contains a mobility provision. The statutory test is distinct from constructive dismissal based on repudiatory breach of contract.

Five bus drivers were employed by CentreWest on the 414 route from Westbourne Park depot. The route transferred to Abellio on 21 November 2009, requiring work from Battersea depot and substantially increasing the drivers’ journeys. The Employment Tribunal upheld their unfair dismissal claims, finding either constructive dismissal or dismissal under regulation 4(9).

Both employers appealed the decision of the Employment Tribunal sitting at London Central on 22 December 2010. The appeals concerned the effect of contractual mobility provisions, the meaning of substantial change and material detriment, and, in Mr Musse’s case, whether liability rested with the transferor or transferee under regulation 4(7).

1. Regulation 4(9). The appeals concerning the other four employees were dismissed. “Working conditions” is wider than “contractual conditions” and includes the place of work. Contractual terms are relevant, but the statutory comparison is between the actual circumstances in which work was performed before the transfer and those resulting from it.
2. The approach in Tapere v South London and Maudsley NHS Trust [2009] IRLR 972 was accepted. Whether there is a change, and whether it is substantial, are questions of fact requiring consideration of both the nature and degree of the change. Material detriment is assessed from the employee’s perspective, although the tribunal must objectively assess the effect on someone in that employee’s position. The concept excludes trivial or insubstantial detriment.
3. The Tribunal was entitled to find that moving the drivers from north-west London to Battersea was substantial and materially detrimental. An increase of about two hours in the working day, particularly for shift workers travelling at inconvenient times, was capable of satisfying regulation 4(9). The contractual ability to move employees between specified locations did not determine the issue.
4. The constructive-dismissal analysis was distinct. It required a contractual breach, repudiatory conduct and resignation in response. The Tribunal was entitled to find a breach because Battersea was not among CentreWest’s specified locations. However, the question whether that breach was repudiatory might have required remission if it had remained material to the outcome.
5. Mr Musse’s appeal 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 resolved whether Mr Musse objected to employment by Abellio, and its findings were inconsistent. The issue was remitted for clarification, alongside the Tribunal’s review.

• Employment Appeal Tribunal: Appeals from the Employment Tribunal sitting at London Central, whose decision dated 22 December 2010 upheld the employees’ unfair dismissal claims. The appeals by Abellio were dismissed. CentreWest’s appeal concerning Mr Musse was allowed and remitted.