Things that come in threes

WynLewis

Buses often come in threes. The same principle now seems to apply to TUPE cases. Here are some recent examples of TUPE in triplicate, to ease you from late Summer into early Autumn.

TUPE: can you resign and successfully claim constructive dismissal, or that you have been dismissed, if your travelling time increases after a TUPE transfer?

“It depends” is the answer.

It’s a “yes” if you rely on the 2012 case of Musse v. Abellio, when a relocation of 6 miles (Westbourne Park – north of the Thames, to Battersea – south of the Thames) because a TUPE transfer was a substantial and materially detrimental change in some bus drivers’ working conditions.

It’s a “no” if you rely on the 2014 case of Cetinsoy v. London United Busways, when a relocation of only 3½ miles (Westbourne Park to Stamford Brook – both north of the Thames) and an extra 30 to 60 minutes’ travelling time each day in London following a TUPE transfer wasn’t a substantial and materially detrimental change to some bus drivers’ working conditions.

Why do you care? Because Regulation 4(9) of TUPE 2006 deems an employee’s resignation to be a dismissal where it’s in response to a substantial change to the employee’s working conditions to their material detriment – which brings the risk of significant compensation payments.

So do these cases make things easier for employers? No. The reason is that each situation will be fact-specific. But the cases may indicate a hardening of attitudes towards employees who might use a change of workplace as a device to obtain compensation where none should be available; or a reinforcement of the idea that moving jobs within the Circle Line isn’t really a big deal.

TUPE: does TUPE “bite” when you take over the employees, or at some other time?

The answer is that it becomes effective when a transferee takes over responsibility for the business or for the outsourced service, not when a transferee takes over responsibility for the employees in the business (the responsibility for which transfers automatically when the business gets taken over).

In Housing Maintenance Solutions v. McAteer, the issue was whether there had been a TUPE transfer when HMS (which was a new organisation) was preparing to take on the activities that had previously been carried out by a company called Kinetic, or whether the TUPE transfer took place when HMS actually took over Kinetic’s activities (because, during that prep stage, HMS had contracted with some of Kinetic’s former employees as project managers). The answer was only when HMS actually took over responsibility for the work that had previously been done by Kinetic.

And your “takeaways” are? Don’t forget (despite the “E” in “TUPE”) that the trigger for TUPE is the transfer of a business or activity, not on who employs people in that business or activity.

TUPE: how many fingers do you need to count when TUPE doesn’t apply?

The answer is: “not many”.

Two important exceptions to TUPE applying when there is a service provision change (known as an SPC) are (1) when the activities carried out by the contractors before and after an SPC are for different clients; and (2) when a new contractor carries out a one-off or a short term contract.

In the case of Ndeze v. Horizon Security Services, Mr Ndeze had been employed by PCS to provide security services to Workspace (in its capacity as the manager of the Alpha Business Centre) until PCS had ended his employment due to the planned demolition of the business centre. He claimed that he should have transferred to Horizon when they (not PCS) were appointed by Waltham Forest County Council (the ultimate owner of the business centre) to provide security for a period of 6 to 9 months while the business centre was run down before being demolished.

But there had been a change of client (Workspace to Waltham Forest) and a change of provider (PCS to Horizon) for a relatively short period. So the generic “before and after should be more-or-less-the-same” test was well short of being satisfied. Consequently there was no TUPE transfer.

Expect more fun TUPE cases over the next few months.