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Employees Clashing over Commuting

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Employment plays a key role in modern life; many businesses have an active social community, the promise of a promotion provides a target for ambitious employees, and at a very practical level, a job provides an income.

Considering this, it is not difficult to see why employment law is so important for both employers and employees. In order to ensure that these contractual relationships run smoothly, there must be situation-specific rules that everyone can follow. However, as new hurdles arise, particularly since the global financial crisis in 2008 and the increasing awareness of employment tribunals, the role of the law in employment matters has become even more pronounced. Many businesses have undergone significant structural and operational changes, and increasing numbers of employees have signed up to zero hour contracts.

One of the most recent developments in employment law concerns an employer's right to relocate a work place, with the expectation that employees will accept additional travelling time on their commute to work.

Increasing employees’ commuting time can have significant consequences. According to Lizzie Crowley of the Work Foundation, long commutes can have extreme health and social side effects. She warns of the "potential for extreme stress, chronic fatigue and an increased likelihood of developing indicators that might lead to a heart attack".

The question on everyone’s minds, then, is how far is too far?

Cetinsoy & Ors v London United Busways Limited [2014] UKEAT

Recently, an Employment Appeal Tribunal (EAT) upheld the earlier decision of a lower Employment Tribunal that held the claimant bus drivers were not able to resign and claim constructive dismissal because the addition of between 30 to 60 minutes travelling time for workers did not amount to a “substantial” change, nor did it operate as a “material detriment” to them.

The Facts

The bus drivers were “required to work from a different depot following a Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) transfer of the bus route.” Following this, the appellants 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.” 

According to Out-Law, “TUPE protects the rights of employees whose employers are taken over by new owners; or where work is outsourced, brought back in-house or there is a change in service provider.”

Regulation 4 paragraph 9 provides:

… 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.

The other provisions of Regulation 4 effectively mean that the contract continues with the new employer as it had with the former employer.

The Employment Tribunal at first instance dismissed the claimant’s argument on the basis that, since “the contractual arrangements which they had enjoyed under which they could have been required to change base to a depot more inconvenient than the one to which they objected, the change of location did not amount to a substantial change in their working conditions.”

Additionally, it was held that Musse v Abellio “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 a question of fact and assessment for the judge to determine”. 

The Employment Appeal Tribunal Decision

Ultimately, we must consider whether the EAT, and the previous Employment Tribunal, came to a logical, fair conclusion.

The bus drivers’ appealed against the decision of the Employment Tribunal on multiple grounds:

  1. First, that the judge had taken the wrong approach in applying the law in respect of repudiatory breach. A repudiatory breach of contract gives the aggrieved party the right to choose either to end the contract or to affirm it. In either case, the aggrieved party may also claim damages.
  2. Secondly, that he had wrongly concluded that the breach was not repudiatory: location, it was submitted, is a fundamental term of the contract and a breach of it always fundamental.
  3. Thirdly, that the judge should have applied an objective test in deciding whether there had been a breach. It was submitted that, instead, he had used a subjective test because “He took into account the subjective intention of the employer, and not the conduct of the employer which objectively might be said to manifest that intention.” It was submitted that he took into account, wrongly, “that the Respondent's determination to give effect to the contractual terms had been interrupted by the Claimants resignations, and thwarted by their own failure to act immediately, thereby suggesting that the breach, if it was a breach, was capable of remedy which on plain authority (Bournemouth University Higher Education Corporation v Buckland), it was not.”
  4. Fourthly, they argued that “the conclusion that there was no substantial change in working conditions was perverse, that the judge had conflated the question of substantial change with the question of material detriment, and had erred in his first approach to the Regulation 4(9) question by having specific regard to the contract, when what was in issue was a matter of how people worked, not what they had agreed.”
  5. Additionally, the appellants argued that “the Tribunal had applied the wrong test in deciding material detriment; the test was whether employees regarded the changes as being to their detriment and, if they did, whether a reasonable employee could have taken that view. The Tribunal had adopted an objective approach rather than the prescribed subjective one.”
  6. Additionally, the EAT were also asked to reconsider “the finding of the judge that the dismissals, being caused by the resignations, on the ground of a change of location, could not be said to be for an economic, technical or organisational reason as the judge had gone on in his judgment to say.”

The EAT accepted the bulk of the appellant’s subissions “to the effect that the judge gave a muddled judgment”, but considered that it was necessary to focus on two central questions:

  1. Whether the judge was entitled to conclude that there was a repudiatory breach; and
  2. Whether he was entitled to come to the conclusion that there had been a substantial change in working conditions to the material detriment of the employees.

The EAT held that there was no error in the judge’s conclusion because “it was within the entitlement of the judge to come to the conclusion of fact and evaluation he did on the facts of this case.” Hence, the former employees could not claim that they had been dismissed unfairly because the EAT agreed that the additional travelling time did not amount to a “substantial” change, nor did it operate as a “material detriment” to them.

Arguably, this conclusion was just because businesses have to be able to adapt in order to meet changing requirements of industry. However, this does not mean that the interests of employees should be ignored; rather, there must be a careful balance between the best interests of employers and their workforce. For the EAT, the principle to be applied was not that the “change of location for a bus driver was substantial,” but rather whether the judge in the lower Employment Tribunal was entitled to “come to the view on the facts of that case that there had been a substantial change.” Hence, one may consider that the EAT achieved a balance between the interests of employees and employers because the tribunal took a holistic view of the situation. By considering the entirety of the contractual relationship between the two parties, the tribunal was able to balance the necessities of industry against the practicalities of an employee’s working day.

Additionally, in order to facilitate this balance, the EAT benefitted from the insights of two lay members, who were “able to contextualise the disadvantage suffered by a move of location in relation to their experience of employment practices.” The make-up of tribunals in this context is important, because one has to remember that workers are often at the mercy of their employer. Particularly in times of financial crisis, workers may be reluctant to bring their cases forward if they feel that those who judge their cases do not have a realistic perception of their roles.

As noted previously, both the initial Employment Tribunal and the following EAT decision dismissed the argument that Musse v Abello set a precedent in favour of the appellants. However, as illustrated by commentary from No. 5 Chambers, this dismissal was well-founded:

Notwithstanding that the employment contracts in Musse were identical, the change in work location was only 3 miles compared to 7 miles in Musse and, unlike Musse, did not involve a move from the north to the south of the Thames.

Arguably, therefore, the differences between the case at hand and Musse were quite significant in practice. Hence, it would appear entirely logical for the tribunal to conclude that the change of location was not “substantial”, and thus that the employees were not entitled to claim for constructive dismissal. From this analysis, I ultimately consider that the EAT was correct in its evaluation of the merits of the case. 

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Tagged: Commercial Law, Employment Law

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