Two Recent TUPE Cases

(i) A change in location was found to be a substantial change to the employees' material detriment

In Abellio London Ltd (formerly Travel London Ltd) v Musse and others UKEAT/0283/11, the EAT has upheld a tribunal's decision that a requirement for bus drivers to relocate six miles, from Westbourne Park (West London) to Battersea (South West London) following a TUPE transfer, was a substantial change in their working conditions to their material detriment pursuant to regulation 4(9) TUPE.

The EAT approved the Tribunal's application of Tapere v South London and Maudsley NHS Trust [2009] IRLR 972, which held that the question of whether there has been a substantial change is a question of fact to be determined by reference to the nature as well as the degree of change, and in considering whether the change is to the employee's material detriment a tribunal has to consider the impact of the proposed change from the employee's point of view and whether the employee is reasonable to view that change to be detrimental.

The EAT held that the tribunal was entitled to find that the relocation was a substantial change, in view of the impact on the employees' travel arrangements and held that it was irrelevant that the contract had contained a mobility clause as the protection in regulation 4(9) TUPE applies to an employee's actual circumstances, not what they could be required to do under their contract. The change would increase the employees' working day by between one to two hours, which in the bus drivers' view, was to their material detriment. The EAT approved the tribunal's finding that this was a reasonable position for the bus drivers to adopt in the circumstances.

Comment: Following this decision, and that in Tapere, transferee employers should be aware that as the question of "material detriment" is to be considered from the employee's perspective, there appears to be a low hurdle for employees to satisfy a regulation 4(9) claim.

http://www.bailii.org/uk/cases/UKEAT/2012/0283_11_1201.html

(ii) EAT rules that TUPE did not apply following a change in the activity being undertaken

The case of Johnson Controls Ltd v Campbell and another UKEAT/0041/12 provides a useful insight into how Tribunals will consider service provision changes.

In this case, Mr Campbell was a taxi administrator, employed by Johnson Controls, and his role was to take bookings for taxis from clients. Over 80% of his duties involved one particular client, the UK Atomic...