Cetinsoy & Ors v London United Busways Ltd

For regulation 4(9) of the TUPE Regulations 2006, the question whether a transfer involves a substantial change in working conditions is an evaluative question of fact. It concerns the way or environment in which employees work before and after the transfer, rather than contractual terms alone, although those terms may provide relevant context.

A change of workplace does not necessarily constitute either a substantial change in working conditions or a repudiatory breach. Each issue depends on the particular facts. Where the same workplace change is relied on for both claims, a sustainable finding that the change was not substantial will ordinarily preclude a finding that it was a fundamental breach in that case.

The claimants were bus drivers whose employment transferred, with the bus route on which they worked, from CentreWest to London United Busways. Their former depot was unavailable after the transfer and they were required to work from another depot. It was common ground that the new location lay outside the contractual mobility clause and therefore involved a breach of contract.

Some claimants resigned immediately and others resigned after working at the new depot. They claimed constructive dismissal and relied alternatively on regulation 4(9) of the TUPE Regulations 2006, contending that the move was a substantial detrimental change in working conditions. The Employment Judge rejected the claims. The appeal challenged, in particular, the findings that the breach was not repudiatory and that the workplace change was not substantial.

1. Appeal dismissed. Although the Employment Judge's reasoning was muddled and included errors of approach, his clear alternative finding that the move did not involve a substantial change in working conditions was open to him and was not perverse.

2. Regulation 4(9) of the TUPE Regulations 2006 requires an assessment of the practical change in the way or environment in which employees work after the transfer. It is not an inquiry solely into contractual rights, though the contractual mobility arrangements may be relevant factual context. The assessment is one of fact and evaluation, subject on appeal to correction for legal error or perversity.

3. On the evidence, the increased journeys to the new depot were capable of being found not substantial. The Employment Judge was entitled to take account of the London bus-driving context, the travel impact, and the fact that the contracts contemplated deployment to other depots in the general area which could entail greater travel.

4. Musse did not establish that every transfer between bus depots, or every contractual breach concerning workplace location, was necessarily substantial or repudiatory. It established that those conclusions depend on the facts and evaluation in the individual case.

5. The constructive-dismissal analysis requires an actual breach to be sufficiently serious, or an anticipatory breach objectively to amount to abandonment or an outright refusal to perform the contract. In these particular circumstances, the finding that the workplace change was not substantial meant that the breach could not properly be characterised as fundamental. The claimants therefore could not establish either a dismissal at common law or a deemed dismissal under regulation 4(9).

6. The Tribunal expressed no concluded view on whether “substantial” in regulation 4(9) means merely “not insubstantial”. It also considered that the Employment Judge may have erred in his approach to material detriment, but that issue could not alter the outcome once the change itself was permissibly found not substantial.

• Employment Appeal Tribunal: dismissed the claimants’ appeal and upheld the Employment Judge’s dismissal of the constructive-dismissal and regulation 4(9) claims.
• Employment Tribunal: rejected the claims following a hearing before Employment Judge Etherington sitting at London Central. No citation for that decision is stated.