In Abellio London Ltd (Formerly Travel London Ltd) v Musse & Ors the Employment Appeal Tribunal gives us a useful reminder that the right of employees to resign in response to a detrimental change of terms on a transfer of an undertaking is not restricted to changes in to their contractual terms. When a transfer takes place, and employees are not happy with it, they have two options. They can inform either the transferring employer, or the transferee employer, that they object to becoming employed by the transferee, in which case their employment ends without any dismissal – or any right to make any claim. If, however, the transfer involves a substantial change to their working conditions which is to their detriment, they can resign, and will be treated as dismissed.
Abellio dealt with claims by several London bus drivers on route 414, who were based at a depot in Westbourne Grove. When the route was transferred to Abellio under a service provision change they were expected to transfer to a depot south of the river in Battersea. While there was a mobility clause in the contract, this only mentioned depots run by the transferor, and not Battersea, which was an Abellio depot. Further it added significantly to their daily commute – by between one and two hours a day.
In the EAT’s view, the Tribunal was perfectly entitled to come to the conclusion that the additional travel time was a detriment entitling the employees to resign, because “working conditions” means “the actual circumstances in which work is performed, as opposed to the purely contractual underpinnings”. Having decided the issue on the basis of the wider provision in the TUPE regulations, there was no need, strictly, to make any finding on whether the change of depot was also a constructive dismissal, but the EAT confirmed that the Tribunal was entitled to come to the conclusion that it was a constructive dismissal.
The case also highlighted the impact of the two options employees have if they are unhappy with the change of employer and or working conditions. Whereas most of the drivers resigned in response to the change of working conditions, in the case of one employee, Mr Musse, it was unclear, on the findings of the Employment Tribunal, whether he had resigned, or merely objected to the change. If the former, he could succeed in an unfair dismissal claim – if the latter, he could not. The case was returned to the same tribunal to clarify whether or not he had objected to the transfer.