TUPE

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Cetinsoy v London United Busways Limited EAT – 23 May 2014

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This is another case concerned with a transferee employer requiring bus drivers to change their base depot from the place it was before the transfer to another location after the transfer.

In Musse v Abiello London Limited  it was held that a move from Westborne Park to Battersea (an additional 2 hour commute per day) was a substantial change in the drivers’ working conditions to their material detriment such as to amount to a dismissal under Reg 4(9).  By contrast here the drivers were required to move from Westbourne Park to Stamford Brook a distance of 3.5 miles (or an addition 30 minute to 1 hour drive per day).  The ET held this was not a substantial change in working conditions and nor was it a fundamental breach of contract entitling the drivers to resign.

The EAT Judgment

Langstaff P held:

1.  Whether or not a change in working conditions was substantial or a breach of contract fundamental was a question of fact for the tribunal.  No surprise there.

2.  That where the breach of contract and change in working conditions concern the same issue then the outcome will be the same in both cases.  If the change is substantial it will also be a fundamental breach of contract .  By contrast if the change is not substantial then it will also not be a fundamental breach of contract (§21).

Comment

The attempt to rely Musse case as a precedent that any change in work location must amount to a substantial change in working conditions to the employee’s detriment failed.   This case does not of course address the issue of whether there can be a substantial change in working conditions which is not a breach of contract

Link to Judgment

 

 

 

 

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