The Employment Appeal Tribunal’s (EAT) decision in London United Busways Limited v (1) Mr V De Marchi and (2) Abellio London Limited is interesting because it explains what should happen when a worker chooses not to transfer where, in a TUPE transfer situation, faced with the question of whether to transfer to the new employer, the new employer intends to make substantial changes to their terms and conditions of employment that would cause them detriment.
That is a lot to consider, I appreciate. To provide context: Mr De Marchi was employed as a bus driver by London United Busways Limited (LUBS) and lived around 15 minutes’ walk away from the garage/depot where he started and finished his daily shifts.
This had been the arrangement for several years. Following a re-tendering exercise, however, Mr De Marchi’s bus route was to become the responsibility of Abellio London Limited and would be run from another depot. For Mr De Marchi, who did not have his own car, this would mean around a two-hour commute on top of his daily shift.
Situations like this are usually difficult and complex and it is not always clear how or why a person’s employment had come to an end, as was the case here. Mr De Marchi said he would not, in those circumstances, transfer to Abellio London Limited and LUBS response was to say it was terminating his employment.
The decision
The EAT held:
- Mr De Marchi’s employment had, in fact, come to an end when he objected to the proposed transfer of his employment. Regulation 4(8) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applies in such circumstances to end the worker’s employment contract automatically (by operation of law) on the date of the business transfer. Regulation 4(8) requires only the existing employer to pay the worker’s salary up to the termination date.
- As Mr De Marchi had objected to the transfer in circumstances where there was, following the transfer, going to be a substantial change in his working conditions to his material detriment, in accordance with Regulation 4(9) of TUPE, he should be treated as having been dismissed by LUBS, and any resulting liability should be met solely by LUBS.
The case has been sent back to the Employment Tribunal to decide what if any liability LUBS has for Mr De Marchi’s dismissal. We will look at what potential compensation may be payable in such circumstances in a future blog.
Watch this space!
This blog was written by Ben Lindsay, Solicitor at didlaw.
