EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal – UNFAIR DISMISSAL – Constructive dismissal – Bus drivers who were required to work from a different depot following a TUPE transfer of the bus route on which they worked resigned (some a month after the transfer) and complained of unfair dismissal, relying on Regulation 4(9) of TUPE and the EAT decision in Musse v Abellio. Although the decision by the EJ was muddled, and flawed in a number of respects, he came to a central conclusion that in the context of Bus Drivers working in London, and the contractual arrangements which they had enjoyed under which they could have been required to change base to a depot more inconvenient that the one to which they objected, the change of location did not amount to a substantial change in their working conditions. Since in the particular circumstances of the case there could only be a fundamental breach of contract if the change were thought substantial, this conclusion meant there was no dismissal either at common law or as provided for by Regulation 4(9). Musse was not authority that if there was change from one base depot to another, in breach of contract following a transfer, it would necessarily amount to either a fundamental breach or a substantial change in working conditions: rather, it was authority that this was question of fact and assessment for the judge to determine, which if he approached matters correctly and came to a conclusion which was not perverse, would stand. The judge’s conclusion here could not be said to be perverse, and therefore the appeal against it failed
Langstaff P J
[2014] UKEAT 0042 – 14 – 2305
Bailii
England and Wales
Employment
Updated: 20 December 2021; Ref: scu.536279