Claimant v De Marchi v London United Busways Ltd and Abellio London Ltd — 2021

This was a reserved judgment on a preliminary issue arising from the route 27 TUPE transfer from the First Respondent’s Stamford Brook garage to the Second Respondent’s Battersea garage. The tribunal accepted that the transfer was a relevant transfer under TUPE and that the claimant had objected to becoming employed by the Second Respondent because the move to Battersea would significantly lengthen his commute from a 15-minute walk to journeys involving train and night bus travel.

The judge found that the move from Stamford Brook to Battersea was a substantial change in working conditions and that it was to the claimant’s material detriment within regulation 4(9) TUPE. However, the tribunal also found that the claimant did not treat his contract as having been terminated under regulation 4(9); he repeatedly said that he had not resigned, continued to seek sick pay, and was attempting to keep the contract alive while resisting the transfer.

Having analysed the interaction between regulations 4(7), 4(8) and 4(9), the judge held that the claimant’s objection did not transfer his contract to the Second Respondent, but that the employment ended on 8 November 2019 when the First Respondent treated the matter as closed and informed him that he was no longer its employee. The judge rejected the argument that the workplace change amounted to a repudiatory breach of contract, holding that the mobility clause, the surrounding contractual context, and the fact that the change arose through the TUPE transfer meant the breach did not go to the root of the contract.

The result was that the constructive dismissal / repudiatory breach theory failed, but the judgment did not determine the fairness of the dismissal or the remaining issues in the case. The tribunal indicated that those matters, including remedy, were to be listed for a further final hearing.