Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), TUPE 2006 an employee's resignation is deemed to be a “dismissal” where it is in response to: (i) a substantial change to the employee's working conditions to their material detriment; (ii) an employer's repudiatory breach and the employee claims constructive dismissal. But what amounts to a ‘substantial’ change?

In Cetinsoy and others v London United Busways Ltd, the Claimants’ contracts contained a mobility clause reserving the right to move them to any of the employer’s work locations. They were moved to another depot three and a half miles away and because of the resulting extension to their working day from between 30 minutes to one hour, they resigned. The EAT agreed with an employment tribunal that a relocation of three and a half miles following a TUPE transfer was not a substantial change to the employee's material detriment, nor was it a repudiatory breach of contract. The transfer to the other depot placed no greater burden on the Claimants than a transfer to the other depot locations to which they could have been relocated in accordance with their contracts and did not amount to a substantial change as their jobs were preserved at a location more convenient to them than the other locations to which they could have been required to move. In addition, given that the maximum commuting time would be 30 minutes each way, the increases were relatively slight when viewed against the potential loss of their jobs.

The case highlights three practical points for employers assessing how far they can go in utilising inherited contractual flexibility clauses: (i) each case has to be decided on its own particular facts, within the context of the contractual terms that apply; (ii)  the threshold for the material detriment test is a fairly high one because although a tribunal has to consider the impact of the proposed change from the employee's point of view the key question is whether it is reasonable to regard a change as being detrimental; and (iii) where the right to vary work location is concerned, new regulation 4(5A) was recently inserted into TUPE 2006 specifically identifying a change of location as a potential economic technical or organistional  (ETO) justifying changes to the workforce.

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