SUMMARY
TRANSFER OF UNDERTAKINGS
Dismissal/automatically unfair dismissal
Service provision change
The Claimants worked for a bus undertaking on a route transferred
to another bus company under TUPE. This was found to involve a
significant change to their material detriment. Arguments that this did not
justify a finding in favour of the Claimants under regulation 4(9) of TUPE were
rejected.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
These are two appeals, which were separate but have now been conjoined,
from a decision made by the Employment Tribunal sitting at London Central on
22 December 2010.
The facts
2.
In summary, the case concerns five Claimants whose claims for unfair
dismissal were upheld by the Tribunal. All five had been employed by CentreWest,
the Appellant in the second appeal, as bus drivers on the 414 bus route. All
operated from the Westbourne Park depot, which suited their particular family
circumstances and where they lived. With effect from
21 November 2009, the 414 route was transferred from operation by CentreWest
to being operated by Abellio, the Appellant in the first appeal. It is
accepted by all the parties before us that that was a service provision change
to which the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006
applied. The relevant terms of TUPE are familiar, but need to be repeated in
the light of the particular arguments we have heard. Regulation 4,
entitled “Effect of relevant transfer on contracts of employment”, reads as
follows:
“(1) Except where objection is made under paragraph (7), a
relevant transfer shall not operate so as to terminate the contract of
employment of any person employed by the transferor and assigned to the
organised grouping of resources or employees that is subject to the relevant
transfer, which would otherwise be terminated by the transfer, but any such
contract shall have effect after the transfer as if originally made between the
person so employed and the transferee.
(2) Without prejudice to paragraph (1), but subject to
paragraph (6), and regulations 8 and 15(9), on the completion
of a relevant transfer—
(a) all the transferor’s rights,
powers, duties and liabilities under or in connection with any such contract
shall be transferred by virtue of this regulation to the transferee; and
(b) any act or omission before the
transfer is completed of or in relation to the transferor in respect of that
contract, or a person assigned to that organised grouping of resources or
employees, shall be deemed to have been an act or omission of or in relation to
the transferee.
[…]
(7) Paragraphs (1) and (2) shall not operate to
transfer the contract of employment and the rights, powers, duties and
liabilities under or in connection with it, of an employee who informs the
transferor or the transferee that he objects to becoming employed by the
transferee.
(8) Subject to paragraphs (9) and (11), where an
employee so objects, the relevant transfer shall operate so as to terminate his
contract of employment with the transferor, but he shall not be treated, for
any purpose, as having been dismissed by the transferor.
(9) Subject to regulation 9, where a relevant transfer
involves or would involve a substantial change in working conditions to the
material detriment of a person whose contract of employment is or would be
transferred under paragraph (1), such an employee may treat the contract
of employment as having been terminated, and the employee shall be treated for
any purpose as having been dismissed by the employer.
[…]
(11) Paragraphs (1), (7), (8) and (9)
are without prejudice to any right of an employee arising apart from these Regulations
to terminate his contract of employment without notice in acceptance of a
repudiatory breach of contract by his employer.”
3.
The Tribunal found, again summarising, that on
17 September 2009 CentreWest wrote to all the Claimants to tell them
that their employment was to be transferred, and to advise them that with
effect from 21 November 2009, “your employment will be with Travel
London, and you will be based at their Battersea depot (Silverthorne Road, London SW8 3HE)”. It advised the employees that they had a right to object to the
transfer of their employment to Travel London.
4.
The five employees concerned in this case all had objections about the
transfer. They saw the requirement as it was anticipated to be, to work from
the Battersea depot, as affecting their travel and domestic arrangements. For
that reason, so the Tribunal found in each case, each employee resigned from
employment. As a matter of fact the Tribunal held that Mr Musse, the
first Claimant, resigned whilst he was still in the employment of CentreWest,
on 20 November. The other four all resigned on the very day of the
transfer itself, going to the Battersea depot, again summarising, in order to
do so. They resigned from the employment of Abellio. The extent of the
difficulties of which they complained, arising as a result of the move from one
depot to another, was summarised by the Tribunal in a schedule or matrix
appended to the Judgment and to be read as part of it (see
paragraphs 8 and 23). That demonstrates that in four of the
cases there was an extension of the time it would take for the employee
concerned to travel to his starting place of work of between 45 minutes
and an hour and a quarter or thereabouts; in respect of the other, there would
be an extension of a car journey by at least 35 minutes. That added,
respectively, some two hours or more to the working day in four cases, and over
an hour in the other.
5.
The Tribunal had to determine, against this background of fact, whether
the change from one depot to another was first of all a repudiation of a
contract, which in the light of the wording of Regulation 4(11) the
employees might rely upon, or whether it was a substantial change in working
conditions to the material detriment of each employee under Regulation 4(9).
Those two matters were distinct, although plainly the matters of fact giving
rise to each overlapped. Thus it was plain, as it seems to us, that the
Claimants would be entitled to claim unfair dismissal and to be regarded as
automatically unfairly dismissed because the dismissal was related to the
transfer in one of two situations, the first being that they had been entitled
to claim constructive dismissal. That would involve the Tribunal being able to
conclude that the employer, whichever employer was relevant, had broken the
contract by changing the Claimants’ base from Westbourne Park to Battersea;
secondly, would require the Tribunal to determine that that breach of contract
was repudiatory; and thirdly, that the Claimants resigned in response to that
alleged breach. Secondly, so far as the case rested on Regulation 4(9),
the Tribunal would have to be satisfied that there was a change that was
substantial, and that it caused a detriment that was material.
The Tribunal’s decision
6.
The Tribunal expressed itself satisfied, having reviewed the particular
circumstances of each case and kept the cases of the employees properly
separate, that each had resigned because of the length of journey that each now
had to make to Battersea instead of Westbourne Park. The Tribunal found in
each of the cases of the second to the fifth Claimant (that is, all except for
Mr Musse) that they had not objected to the transfer as such. That was
plainly taking the view that Regulation 4(7) requires an objection to
becoming employed by the transferee, which is not necessarily the same as
objecting to particular features of the work once it is to be performed for the
transferee instead of the transferor. We shall return subsequently to
Mr Musse’s case because it forms the subject of the second appeal, and
there are issues in relation to that case that do not arise generally to all
five.
7.
As to those five, the Tribunal concluded, first, that they should look
at the contracts of employment of each. These contracts in common form
contained, as paragraph 1.4, under the heading of “Location”, the
following:
“During your training you may be allocated to any of the
Company’s work locations or to the work locations of any external training
providers used by the Company.
On full completion of training, you will commence employment in
your substantive grade and we will endeavour to accommodate your preferred work
location [in the case of Ms Barboza,
whose contract was used to illustrate this, Westbourne Park was specified],
but this will subject to the vacancy situation at the time you complete
training. The Company will always endeavour to allocate you to your preferred
work location, but reserves the right at any time, without payment of
compensation, to require you to work at any of the Company’s work locations as
defined in the Contracts of Employment folder. When you have completed six
months service satisfactorily in your substantive grade you may apply for a
transfer to a more residentially suitable location within CentreWest London
Buses Limited. Full details of the transfer provisions within CentreWest
London Buses Limited can be examined at your work location.”
8.
So far as we know, no further details were put before the Tribunal as
relevant under that last sentence, but in the bundle before us there is
material set out at 156A that at the bottom of the page purports to come from
the “Contract of Employment Binder”. That, at page 156D, sets out the
locations from which CentreWest operated. The document relevant as from
18 February 2009 recorded Alperton, Greenford, Hayes, Uxbridge, Westbourne Park and Willesden Junction as being the locations. No other document altering
that was put before us, unless the letter of 17 September can be regarded
as such a variation. Accordingly, as it would seem to us before returning to
what the Tribunal concluded, the expression “any of the Company’s work
locations as defined in the Contract of Employment folder” related to those
depots to which we have just referred as at and from
18 February 2009.
9.
The Tribunal, having considered those terms, drew particular attention
to clause 17(b) of the employment contract. That stated that variations
to the contract, whether negotiated or unilateral, would become effective when
notified in writing. It also provided:
“17. (a) The company has the right, after consultation, to vary
any of the terms of the contract except where a variation would diminish
statutory entitlements.”
10.
At paragraph 16 the Tribunal said as follows:
“16. The issue arose as to whether the letter […] on
17 September 2009 was a valid variation by [CentreWest] to the contract of employment. The Tribunal finds
that this cannot be a valid variation. At the time the letter was written, [CentreWest] did not have a depot at Battersea
and the relevant list of locations […] did not (and in could not [sic]) include
it. [Abellio] could have varied the
contract by amending [the page in the
contract] following the transfer date, although the Tribunal acknowledge
that they may not practically have had the time to do so.
17. In this regard, the Tribunal note the EAT’s decision in Tapere
v South London and Maudsley NHS Trust [2009] IRLR 972, and in particular
the view on the concept of “substantial equivalence” which has been established
by case law in relation to TUPE transfers.
18. Under Regulation 4(2) of TUPE all the transferor’s
rights powers duties and obligations under or in connection with any contract
of employment of any employee assigned to the organised grouping of resources/employees
shall be transferred to the transferee. Where there are practical impediments
and a clause in the employment contract cannot be implemented after the TUPE
transfer with precisely the same benefits and obligations, then equivalent
benefits and obligations can be substituted so long as neither the benefit nor burden
is increased (‘substantial equivalence’) – as in the case of MITIE Managed
Services Limited v French [2002] IRLR 512 relating to profit sharing
schemes.”
11.
The Tribunal then proceeded to find a close analogy between the facts in
Tapere and the facts of the case it was then considering, and
concluded that the change of the Claimants’ base from Westbourne Park to
Battersea was not permitted by the terms of their contract as at the transfer
date; secondly, that the requirement to relocate was a repudiatory breach of
the contract; thirdly, that they did resign in response to that alleged breach;
and fourthly, that there was therefore a constructive dismissal.
12.
The Tribunal then proceeded to examine the case in so far as it rested
on Regulation 4(9). It referred to the Tapere case, in
which this Tribunal had said
“Whether or not there is a change in working conditions will be
a simple question of fact. Whether or not it is a change of substance will
also be a question of fact and the employment tribunal will need to consider
the nature as well as the degree of change in order to decide whether it is
substantial. In the sense that the employee will not be the arbitrator of
whether the change is substantial, it might be said that the approach is
objective, but the character of the change is likely to be the most important
aspect of determining whether the change is substantial.”
The Tribunal then said:
“22.3 Following this guidance, it is clear to this Tribunal that
there has been a change to working conditions to the Claimants in this case,
namely the relocation of their workplace from Westbourne Park in West London,
north of the river to Battersea in South West London. On the question of whether
that change is substantial, the Tribunal note that this is a move of 6 miles.
This may not on first glance appear substantial, but it is a question of
context. Such a move in a more rural/suburban setting where all employees
drive to work and are offered parking spaces etc may not be substantial.
However, where that move is within Central/Greater London as from north to
south of the river, then bearing in mind the travel conditions involved, the
Tribunal finds that this is a substantial change.
22.4 On the question of whether there is a material detriment to
the employee, the EAT in Tapere said (paragraphs 53 and 54):
‘what has to be considered is the impact of the proposed
change from the employee’s point of view. It is not an issue to be objectively
determined […] the question that ought to be asked is […] whether the employee
regarded those factors as detrimental and if so whether that was a reasonable
position for the employee to adopt.’”
13.
The Tribunal found that each of the Claimants regarded the change to his
or her work location as detrimental and on the evidence had made it clear by
raising written grievances or discussing that issue with the CentreWest
managers. The Tribunal considered the question of whether that view was
reasonable, and concluded that it was. Accordingly, the Tribunal found in each
case that the employees were entitled to succeed.
The appeals
14.
On the appeals by each employer, Mr Lynch QC, for Abellio, and
Mr Dawson, for CentreWest, make common cause to a very large extent upon
challenges to the approach of the Employment Tribunal both in respect of the
conclusions it reached in respect of constructive dismissal and as to the
approach that the Tribunal had taken in respect of Regulation 4(9). Each
adopted the other’s submissions, though we are grateful that neither counsel
trespassed upon ground that he had left principally to the other to deal with.
We regard them therefore as effectively combined submissions.
15.
Mr Lynch QC focussed upon these essential points of fact. First,
it was inherent in the arrangements for operating bus routes in London that the identity of the operating company may change from time to time, and that
such a change will almost inevitably involve a change of the depot in which the
buses operating the route are housed and from which the employees operating
that route will work. Contractually, he insisted, the employer here under the
contract was entitled to have any employee work at any current depot. The
contract could not in the circumstances be regarded as having an interpretation
in which the identity of those depots remained fixed as at the date the
contract had first been entered into, and there was in any event an express
right to vary the contract (see clause 17). As long before the transfer
as 17 September, CentreWest had written to the Claimants and others
notifying them of the impending transfer to Abellio, and telling each of the
consequent change of location of their work.
16.
Given those underlying facts that he singled out for comment, he argued
that the Employment Tribunal had erred in failing to pay overriding regard to
the principle that the employment remains seamless under TUPE such that in
effect one employer is deemed effectively to be in the position of the other.
As he put it in his written skeleton (paragraph 26), “in short, TUPE deems
there to be one continuous employment and deems the transferor and transferee
to be one and the same”.
17.
He objects that the Tribunal here erred in failing to interpret the
letter of 17 September as an effective direction to the employees as to
where they should work and, if it was not an effective direction and if a
variation was required, as a variation. If a variation was required and was
not effected, he argued that the Tribunal had failed to address the fact that
the employees here had resigned on the very day of the transfer, giving, as the
Tribunal had recognised, so little an opportunity to Abellio to vary the
contract under the power to do so contained therein as to frustrate the exercise
of that power by the employer. He argued that the Tribunal had erred because
it gave no effect to the doctrine established in the MITIE case
of substantial equivalence. That recognised that in some circumstances it
would simply be impossible following a transfer for the transferee to be able
as a matter of practicality to honour the terms and conditions of employment
that had hitherto been observed, and provided that the employer provided an
equivalent or comparable entitlement that objectively did not disadvantage the
employees, that would meet the purpose of TUPE.
18.
He drew attention to the case of MITIE as being the case
in which the principle first was most clearly articulated. That was a case in
which this Tribunal, presided over by Maurice Kay J, as he was, had to
consider the situation of employees who had enjoyed benefits provided by a
profit‑sharing scheme under which they received annually either a cash
payment or an award of shares in the transferor company to an extent that
depended upon the company’s profits. The Tribunal had found by a literal
application of the wording of the TUPE regulations that the obligation to
continue that scheme in that form continued. An appeal by the transferee was
allowed. The transferee had no control of the transferor’s scheme, and it was
simply impossible for the transferee company to provide any of the benefits to
the transferred employees; for instance, it simply could not provide shares in
another company, having no power to do so. This Tribunal had regard to the
fact that it was no part of the purpose of the Transfer of Undertakings
Directive 77/187 and the 1981 regulations, that were then the regulations
concerned, to provide obstacles to industrial reorganisation provided that,
“workers are properly protected and their rights appropriately safeguarded”.
Thus he observed that as a matter of fact it would make it difficult if not
impossible to contend that a profit-related pay entitlement could not be the
subject of transfer, but that could not be conclusive as to precisely what had
transferred by way of contractual entitlement in relation to a particular
scheme. The entitlement the Tribunal regarded as appropriate was to
participation in a scheme of substantial equivalence, free from unjust, absurd
or impossible features.
19.
It is clear, we would comment, that in that case the principle is
specifically stated in response to the particular difficulties of that
particular case.
20.
Mr Lynch QC continued to argue that the Tribunal was in error,
in that it had misapprehended the decision in Tapere. If
necessary, he reserved the right to argue, albeit elsewhere, that the decision
in Tapere had been wrongly reached.
Discussion
21.
As to those submissions, we would conclude as follows. First, it seems
to us that this appeal may be approached by looking first at Regulation 4(9)
and its application rather than entering into the matters that arise in respect
of the claim for constructive dismissal as such. The reason for taking that
approach arises out of the wording of Regulation 4(9) itself:
“Where a relevant transfer involves or would involve a
substantial change in working conditions to the material detriment of a person
[…], such an employee may treat the contract of employment as having been
terminated, and the employee shall be treated […] as having been dismissed by
the employer.”
22.
This is not in its terms restricted to the necessity to find that there
has been a breach of contract. “Working conditions” is a phrase that is wider
than “contractual conditions”. It is capable of relating to contractual
conditions; it is capable of relating to physical conditions. It is certainly
capable of relating to matters such as the place of work. What is looked for
is a change in working conditions. If one asks whether there was a change in
working conditions as a consequence of the transfer, in the fact that employees
who prior to the transfer had worked at Westbourne Park and subject to the
transfer, so far as we know, had every expectation of continuing to work at Westbourne
Park now had to work at Battersea, there would plainly be a change in their
working conditions. Mr Lynch QC argues that it is necessary in
evaluating the substantial nature of that change to take into account the
contractual undergrowth which underlay it. We accept that submission to an
extent, but emphasise that the words mean what they say. Working conditions
are not contractual conditions, though they may be affected by them, and they
may take those contractual terms into account. Here, if one has regard to the
contract, it is plain that the employer regarded the question of the place of
work as being of sufficient importance that it should be specified in the
contract, and not simply left to the employer’s power to direct (as part of the
employer’s power to control the employee which is a necessary part of the
contractual relationship in a contract of employment).
23.
More than that, the provision as to location draws a distinction between
the situations when a driver is being trained on the one hand, when he has
completed training on the other, and finally when he has had at least six
months in post as a third position. Each progressively improves his position
and the expectation as to his depot being convenient for him. Hence the
contract, though by reservation of right it permits the company to transfer an
employee from one work base to another, goes out of its way to emphasise that
so far as possible that the employee’s wishes will be accommodated. We accept
therefore Mr Lynch’s point that the contract has a relevance, but the
relevance is far from being entirely one‑sided as he would submit it.
24.
We accept the approach in Tapere, paragraph 45, that:
“Whether or not there is a change in working conditions will be
a simple question of fact. Whether or not it is a change of substance will
also be a question of fact and the Employment Tribunal will need to consider
the nature as well as the degree of the change in order to decide whether it is
substantial.”
25.
It is submitted to us that the Tribunal was not entitled to come to the
conclusion that there was here a material change, largely because of the
provisions of the contract, which provided for a potential move, for example,
from Westbourne Park to Uxbridge. Secondly, we were invited to consider that
in London an ordinary commute to work might very well take an hour or more, and
we should apply on appeal the same approach as was exemplified in the case of Courtaulds Northern Spinning v Sibson and Anor
[1988] ICR 451, a case that related to the change of base of a lorry driver
(see pages 461(g)‑462(e)). There, Slade LJ considered that an
employee in the particular context of that case could not reasonably have
objected to an express term that he should be employed within daily travelling
distance of his home or, if you please, within a reasonable distance of his
home. Here, it was submitted, the depot was just that: within a reasonable
distance of home. As to whether there was here a substantial change was
therefore in dispute.
26.
We conclude that the issue for us is whether as a question of fact the
Tribunal was entitled to reach that conclusion and, if it did so, reaches it by
the right approach. As a matter of fact it was plainly entitled to reach that
conclusion.
27.
What of the right approach? The second limb to the test is whether the
change in working conditions created a material detriment. Here we are
satisfied that upon the findings of fact of the Tribunal it could not be
concluded other than that there was here a detriment. It can be shown simply
by asking whether the change was to the employee’s advantage, to which the
response would have to be plainly not. Was it material? If “material” is used
in contradistinction to “immaterial”, to avoid the trivial or insubstantial,
then the answer, again, is a matter of fact and it could not be said here that
the Tribunal was disentitled from reaching the view it did as to the
materiality of the detriment. Here, however, a question arises as to the
approach that the Tribunal took. In adopting Tapere, as the
Tribunal was effectively bound to do as higher authority, the Tribunal were
adopting the approach that was taken by this Tribunal from
paragraphs 52 to 54.
28.
The context in which those paragraphs arise is this. The claimant was
employed by a Primary Care Trust on terms that included a mobility clause
enabling the Trust to relocate her either temporarily or permanently at other
locations within the Trust. The Primary Care Trust transferred the part of the
undertaking in which the claimant worked to the respondent health authority.
She was told that she would be required to work at a hospital further from
home. She resigned, contending that the change of workplace amounted to a
fundamental breach of her contract of employment, and arguing that
regulation 4(9) of TUPE applied. The Tribunal dismissed her claim, but
this Tribunal allowed an appeal and reversed the decision. It did so
principally upon the ground that the words ”within the Trust” had to be
understood at the date upon which the contract was entered into. That related
to locations of work that were known to the contracting parties at the time of
contract, and the phrase “did not and was not capable of” including locations
that only became locations operated by the employer after and as a consequence
of transfer.
29.
It was in that context that this Tribunal examined the question of
detriment. It said this:
“52. It will be noticed immediately that detriment is not
qualified by any adjective. How then are Employment Tribunals to approach the phrase
‘material detriment’ in Regulation 4(9)? It seems to us probable that
Parliament’s addition of the adjective material was a recognition of Lord
Hope’s analysis of paragraph 35 of Shamoon v Chief Constable of the Royal Ulster
Constabulary [[2003] ICR 337] that the use of the word ‘detriment’, even
without adjectival qualification […] involved the issue of materiality. We
recognise, of course, that the context in Shamoon was one of
discrimination, but the applicable field in which that alleged discrimination
had to be considered was that of employment, and we accept the submission of
Mr Medhurst that we should consider the approach in Shamoon when
interpreting the phrase in Regulation 4(9). Moreover, although material
is added to the rubric of the Directive, we do not think that the addition is
at all at odds with the meaning of the Directive, so long as the purpose of the
adjective is regarded as an emphasis that the trivial or fanciful cannot be
accepted as ‘detriment’.
53. But where we part company with the Employment Tribunal’s
approach is as to the phrase importing an objective test into the regulation.
In our judgment it was an error for the Employment Tribunal to regard this
issue as one that must be ‘objectively determined’. It seems to us what the
Employment Tribunal understood that to mean here was that the competing
arguments of the employee and the employer should be contrasted, weighed and
arbitrated upon by the Employment Tribunal. In our judgment that was not the
approach of the European Court of Justice in Merckx and Neuhuys v Ford Motors Company Belgium SA
[[1997] ICR 352], and it would not be consistent with what Scott LJ said in his
speech in Shamoon […], which we regard as the correct approach. […]
54. What has to be considered is the impact of the proposed
change from the employee’s point of view. […]”
It then set out and analysed the impact of the proposed change
from the employee’s perspective in that particular case.
30.
It is argued before us that it may not be appropriate to transport into
this field of employment law the concept of detriment that derives from another
field. It is argued, principally by Mr Dawson but with the support of
Mr Lynch QC, that the test set out in Tapere is a
subjective test that leaves no space for the important recognition that the
employer’s interests too may require a degree of consideration in the context
of TUPE. Thus Mr Lynch for his part would emphasise that it is not the
exclusive role of TUPE to protect employees, but rather to strike a balance; it
is not there to impede the creation of a new undertaking. He cites MITIE,
particularly at paragraph 16, and the case of Werhof v Freeway Traffic Systems
GmbH & Co KG [2006] 2 CMLR 44, particularly at
paragraph 31 of the Judgment and the Advocate General’s opinion at
paragraphs 48‑51, for that proposition. In particular, he argues
that TUPE should be interpreted to avoid absurdity, recognising that it does
create a fiction that can on occasions collide with reality.
31.
The approach here, it is therefore suggested, was simply wrong in so far
as the Tribunal took a subjective approach.
32.
We cannot accept that the Tribunal made any material error of law in its
addressing the question of material detriment. The central point made in Tapere,
which Mr Dawson was constrained to accept in his submissions, was that in
asking the question whose detriment had to be considered there is only one
answer, and that is the employee’s. It is therefore the employee’s perspective
that must be considered, albeit that the Tribunal must consider objectively the
effect of what has taken place upon someone in that person’s position. That,
in our view, is what this Tribunal was saying in Tapere. In any
event, even if we were wrong on that, it seems to us that the decision of this
Tribunal did not turn upon fine distinctions between the subjective or the
objective approach but upon the Tribunal asking simple questions. Was there
here a substantial change? That is a question of fact; the answer was yes.
The Tribunal was plainly entitled to reach that finding. Was it to the
detriment of the employees? Given what the Tribunal had set out, it was
entitled subject only to not being perverse to reach that conclusion; it did
so.
33.
To come to a conclusion that an extension of the working day of around
two hours, taking both travel to and from work into account, was material is
not in our view a conclusion that the Tribunal was disentitled to reach.
Nothing about the decision reaches the high hurdle that perversity would have
to surmount. The lay members in particular would emphasise that travelling at
varying hours of the day, often at inconvenient times of morning or night on
shift work, when public transport may not be easy, from north of the river to
south of the river, as the Tribunal observe, adding substantial time to the
length of the day, is entirely appropriately to be regarded, if the Tribunal
wish to do so, as a significant and material change to the detriment of the
employee. We do not see, for the reasons that we have expressed, that the fact
that the contract could have been changed affects the decision made here,
because the comparison that the Tribunal is obliged to make is between the
working conditions as they were prior to the transfer and those that they will
be as a result of the transfer. “Working conditions” is a reference to the
actual circumstances in which work is performed, as opposed to the purely
contractual underpinnings.
34.
Accordingly, as it seems to us, the conclusion that the Tribunal came to
in its application of Regulation 4(9), was fully justified. Any
discussion of the extent to which it was also entitled to reach that conclusion
in respect of the constructive dismissal case is therefore by the way. Because
we have heard argument we shall, however, deal with our conclusions as to that,
though briefly. The first question, whether the Tribunal was entitled upon the
facts it found to conclude that there was a breach of contract, must, in our
view, be answered yes. That is because the contract in its terms provided that
CentreWest might require an employee to work at another work location, but the
other work locations are identified as “the Company’s work locations as defined
in the Contract of Employment folder”. Battersea did not appear in the
contract of employment folder. Nor was there a variation to include it. We
have been told by the advocates (who were present at the Tribunal except for
Mr Lynch QC), that there was no evidence as to when consultation took
place in respect of the letter of 17 September, and we conclude that the
Tribunal was entitled to come to the conclusion it did at paragraph 16.
35.
To decide that it was a valid variation, if the Tribunal had done so,
would have meant that the Tribunal was concluding that CentreWest, which did
not have a depot in Battersea, could at the time of 17 September have
lawfully required its employees to work at Battersea, which was not one of its
locations. That would be a nonsense, unless Mr Lynch’s argument that for
CentreWest one might, having regard to the fictional seamlessness of the
contract under TUPE, regard Abellio as effectively being the employer. For our
part, there is a distinction to be drawn between the continuation of a contract
of employment, which is preserved by TUPE, and the identity of the employer,
which plainly changes. If it were otherwise, there would be no need to
distinguish between transferor and transferee, for instance. At the time,
17 September 2009, CentreWest was the employer subject to the contract
that CentreWest had with the Claimants. The fact that there has been a
transfer since does not mean that one may substitute “Abellio” for “CentreWest”.
The provisions of Regulation 4(2) provide that, “[CentreWest’s] acts or
omissions shall be deemed to have been an act or omission of or in relation to
the transferee”, but that does not make, in our view, a location that was not
that of the employer at the time into one which had become a depot of the
employer. Accordingly, in our view the Tribunal was entitled to reach the
conclusion it did in paragraph 16.
36.
Mr Lynch argues that because the employees resigned when they did
Abellio’s power to vary was frustrated. The issue is, as it seems to us,
simply whether there was a breach of contract by the employer. If the employer
was requiring the employees to work at a place at which the contract did not
provide that they could be told to work, then there was a breach, and the fact
that matters might have been otherwise is no different from the fact that in respect
of any breach of contract by an employer the employer might have conducted
himself differently had he chosen to do so. Mr Lynch, however, and
Mr Dawson both take the point that it is not sufficient for a Tribunal to
determine whether there has been a breach of contract; it has also to determine
whether the breach is repudiatory (that is, whether the employer has evinced an
intention not to be bound by the terms of the contract). Here, it may be
argued that Mr Lynch’s point about the shortness of time that Abellio may
have had to respond may have a real impact. Could it be concluded that, by
reason of Abellio’s actions after the transfer that Abellio was indeed
repudiating the contract in this respect? If it had indicated it wished to
adhere to the contract by entering into negotiations about a variation, and
determining upon one, it might be arguable that the nature of the breach was
not so significant as to be repudiatory.
37.
The Tribunal do say in paragraph 20 that allowing the locations to
be read as a list of Abellio’s locations with immediate effect from the
transfer would be to alter the terms of the contract to the disadvantage of the
employees, but there is no discussion as to the significance of that
disadvantage in this context. It may very well be that the Tribunal had in
mind that the change was such that in context it was repudiatory, and we could
not consider that they would have been disentitled to do so, but we do not
know, from what is said, upon what basis the Tribunal reached that particular
conclusion about that particular breach. Accordingly, had the contractual
question remained for our determination, we would have been inclined to
consider that the matter might have to be remitted to the Tribunal for further
consideration on this point.
38.
We turn, finally, to the separate issue, which relates to Mr Musse,
on the one outstanding ground of appeal that has not been disposed of by our
conclusions thus far, and which, by the concession properly made by
Mr Dawson that his first ground of appeal, which related to procedural
aspects of the hearing before the Tribunal, has effectively been addressed by
the Tribunal choosing to have a review of its decision, at which it will hear
evidence from a Mr Leonard of CentreWest as to a conversation with Mr Musse
on 20 November 2009. The one matter that remains is whether or not,
given the Tribunal’s findings of fact, the Tribunal should have found as a
matter of law that the employer responsible for any redress was Abellio and not
CentreWest. He points to the fact that the consequence of Regulations 4(1) and 4(2)
is that any act or omission before the transfer is completed is deemed to have
been an act or omission of or in relation to the transferee. Accordingly, if an
employee is caused to resign by reason of a matter relating to the transfer by
the behaviour of the transferor employer, liability transfers to the
transferee. That much is common ground between the parties.
39.
That is subject to Regulation 4(7). Where an employee informs the
transferor or transferee that he objects becoming employed by the transferee,
Regulations 4(1) and 4(2) do not apply, so for liability to
remain with CentreWest as transferor there has to be an objection not just to
aspects of the anticipated post-transfer employment but to becoming employed by
the transferee. Here, what the Tribunal said was, at paragraph 9.4, that
they accepted Mr Musse’s evidence that he resigned on 20 November;
that is, he resigned whilst he was still an employee of CentreWest. They then
said this:
“[…] the day before the transfer date and this was the date of
termination of his employment. This means that his employment did not transfer
to [Abellio] under TUPE. The Tribunal
also finds that the main reason for this was the proposed relocation to
Battersea.”
40.
In coming to that conclusion the Tribunal do not recognise expressly
that it is necessary both to have an objection as well as a resignation. As to
approach, therefore, we are left in some doubt as to whether the Tribunal
properly applied the provisions rather than having jumped from the issue of
fact for their determination, which was to decide the date of resignation,
straight to the consequence; which is, transfer or not. There is no developed
statement in the text of the Judgment that recognises that if there had been an
objection and resignation, then Abellio would be responsible. As a matter of
fact, further, this issue is complicated by what are on the face of it
potentially inconsistent findings. The Tribunal do not say in terms at any
part of its decision that Mr Musse objected to being employed by the
transferor. Mr Musse had said in his witness statement, and therefore his
evidence-in-chief, that he did not object to being employed as such by
Abellio. The Tribunal included a matrix as an appendix to its decision. The
matrix sets out conclusions of fact. Happily for us, the conclusions of fact
in respect to the length of time that it would take for the employees to get to
Battersea as opposed to Westbourne Park, and the difficulties it might cause
them, are all set out and are expressly incorporated in the Judgment. There is
no reference in the text, however, to other parts of the matrix, including the
question, “did they object?” and the answer which in Mr Musse’s case is “no”.
That might be thought to be a clear finding of fact that Mr Musse did not
object; if he did not object, he resigned from the employment of CentreWest,
his employment never transferred to Abellio, and he is rightly to be
compensated for by CentreWest. If he did object, then his rights would fall
against Abellio; that is common ground.
41.
In paragraph 9, in some detail the Tribunal set out their finding
of fact that Mr Musse did not want to move to Battersea. The emphasis is
on his disinclination to travel to the Battersea depot. It may be that that
was so bound up with the identity of Abellio as the employer that in practice
it meant that he objected to Abellio as the employer, but the Tribunal does not
say so. Although we can see that there is some force in the argument that
Mr Lynch QC addresses that effectively in paragraph 9 there
really was a recognition of an objection to the transfer, we are left with a
factual inconsistency, which arises because the only clear statement as to objection
comes in a matrix that we cannot be certain was intended to operate as a
conclusion of fact in this regard, and, if it did, quite why that conclusion
was reached.
42.
It follows that, both by reason of the approach and because we cannot be
sure for ourselves, having identified an error of approach, that the conclusion
of the Tribunal would inevitably have been the same, that the appeal under this
head must be allowed, but the consequence will be remission, because, as it
seems to us, the matter ought to be a simple one for the Tribunal to clarify.
We have very great sympathy with the view expressed by Mr Dawson that the
proper course here would have been to have raised this inconsistency at an
early stage in these proceedings, so that the matter might, if appropriate, have
been referred to the Tribunal and, if the interests of justice truly required
it, to have invited the Tribunal to hear it as part of the review that it is to
undertake. Since that review includes listening to the evidence of
Mr Leonard, and since it is open therefore to the Tribunal, as it seems to
us, to come to conclusions of fact that may differ from the conclusions
expressed in the Judgment we have been considering, we think there is much to
gain by the Tribunal on remission taking this particular short point into
account and listening to what arguments there may be that arise from its
findings, whatever they may be, having heard the review. If counsel take a
different view as to that, since we have not yet canvassed it with them, we
shall invite their contributions.
Conclusion
43.
For those reasons, the appeals by Abellio are dismissed; the appeal by
CentreWest in Mr Musse’s case is allowed in accordance with our Judgment,
in so far as it relates to Mr Musse, and the consequence will be, unless counsel
persuade us otherwise, that the matter will be remitted for determination at
the same time as the review takes place, subject of course to any directions by
the Tribunal itself.
