London United Busways Ltd v (1) Mr V De Marchi (2) Abellio London Ltd [2024] EAT 191

Appeal and cross-appeal against a decision that the Claimant had been dismissed by the First Respondent. Appeal and cross-appeal dismissed.

The Claimant was a bus driver with the First Respondent. He lived near the depot from where he worked and did not own a car so it was difficult for him to work from an alternative depot. The contract for the particular bus route he operated transferred from the First to the Second Respondent and all the drivers were give three options: 1) to transfer to the Second Respondent under TUPE; 2) accept alternative employment with the First Respondent (which involved new terms); or 3) resign from the First Respondent and receive only outstanding holiday pay and salary. The Claimant objected to all three options, instead wanting to be made redundant by the First Respondent which they refused to do. The ET found that the Claimant had been dismissed by the First Respondent and this finding was challenged by the First Respondent, on appeal, and by the Claimant, on cross-appeal..

Both appeal and cross-appeal were dismissed albeit for reasons which differed from those of the ET. The central question of law which arose was whether, by operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006, an employee who makes clear both that he objects to becoming employed by the transferee and that he wishes to continue in the employment of the transferor remains an employee of the transferor, post transfer, until he is either dismissed or elects to treat the contract as having been terminated. The EAT summarised the issue as follows:

(1) 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 regulation 4(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, regulation 4(9) confers on that person the right to treat the contract of employment as having been terminated. If he elects to exercise that right, he shall be treated for any purpose as having been dismissed by the employer, which, depending upon the circumstances, may be the transferor or the transferee. If he elects not to exercise that right, he transfers to the employment of the transferee, unless he has objected to so doing under regulation 4(7).

(2) Where he objects to becoming employed by the transferee under regulation 4(7) in circumstances in which regulation 4(9) applies, the effect of that objection is to preclude the transfer of his contract, and of any of the rights and obligations etc for which regulation 4(2) provides, to the transferee.

(3) In those circumstances, notwithstanding the employee’s election not to terminate the contract under regulation 4(9), regulation 4(8) operates so as to terminate the employee’s contract of employment with the transferor, by which entity he is treated as having been dismissed, and against which any remedy lies. He has no remedy against the transferee.

https://assets.publishing.service.gov.uk/media/675816a4d89258d2868daf07/London_United_Busways_Ltd_v__1__Mr_V_De_Marchi__2__Abellio_London_Ltd__2024__EAT_191.pdf

Published: 14/01/2025 16:56

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