Change in workplace location after TUPE did not amount to constructive dismissal
Until changes to TUPE earlier this year, it was virtually impossible lawfully to change the workplace location of transferred employees and relocation risked automatic unfair dismissal claims.
However, the amendments to TUPE state that dismissals resulting from a change of workplace are now covered by an ETO reason and therefore will not be automatically unfair.
Of course, relocations may still amount to an unfair dismissal if the change in workplace amounts to a fundamental breach of contract or a substantial change in working conditions to the employee’s material detriment.
However, in the next case, an ET ruled that a change in the claimants’ workplace did not justify their resigning and claiming constructive dismissal.
In that case, the claimants were bus drivers whose employment transferred to a new employer under TUPE. A result of the transfer was that the claimants were required to move to another depot three and a half miles away resulting in an extension to their working day from between 30 minutes to one hour. This was disagreeable to them and they resigned claiming constructive unfair dismissal.
However the tribunal, with which the EAT agreed, rejected the claim. Although the requirement to work from a different depot was a breach of contract, it was not a fundamental breach of contract which entitled the claimants to resign. Furthermore, for the purposes of regulation 4(9) of TUPE, the move did not involve a substantial change in working conditions to the employees' material detriment. The addition of between 30 minutes and 60 minutes travelling per day was not, in the tribunal’s opinion, substantial or to the material detriment of the employees.
Although each case has to be decided on its own facts, within the context of the contractual terms that apply, the threshold for the material detriment test is fairly high because, although a tribunal has to consider the impact of the proposed change from the employee's point of view, the key question is whether it is reasonable to regard a change as being detrimental. In this case, a move in workplace of three and a half miles, adding up to 60 minutes to the claimants’ working day, was not a material detriment.