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

By Neil Guss Regional Employment Rights Manager

& Jazmeer Jackson Employment Rights Lawyer

Key Facts 

This case involved the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the rights of employees who object to a transfer. Mr. De Marchi, a bus driver for London United Busways Ltd (the transferor), objected to a TUPE transfer of his route to Abellio London Ltd (the transferee), citing the increased commuting time to the new garage as a substantial and detrimental change to his working conditions. Mr De. Marchi did not own a car and working from the alternative depot was difficult.  

Mr. De Marchi objected under Regulation 4(7), preventing the transfer of his contract, and declined to treat his contract as terminated under Regulation 4(9). London United asserted that his objection ended his employment under Regulation 4(8), without treating it as a dismissal. Mr. De Marchi claimed that he was dismissed by the transferor due to the substantial change in conditions. 

Procedural History 

• The Employment Tribunal (ET) ruled that Mr. De Marchi had been dismissed by London United on the day before the transfer. 

• Both London United and Mr. De Marchi appealed to the EAT. 

EAT Decision 

The EAT dismissed both the appeal and cross-appeal, clarifying the application of TUPE. Key points included: 

1. Impact of Employee Objection: 

• Under Regulation 4(7), an employee’s objection prevents their contract from transferring to the new employer. 

• Regulation 4(8) terminates the employee's contract with the transferor but does not treat it as a dismissal unless Regulation 4(9) applies.

2. Substantial Change in Working Conditions: 

• The EAT upheld the ET’s finding that moving to a distant garage constituted a substantial and detrimental change to Mr. De Marchi’s working conditions under Regulation 4(9).

3. Employer Liability for Dismissal: 

• The EAT ruled that when an employee objects to a transfer due to substantial changes and chooses not to terminate their contract under Regulation 4(9), the transferor remains responsible for terminating the contract.

4. No Remedy Against the Transferee: 

• The EAT confirmed that Mr. De Marchi’s employment did not transfer to Abellio London Ltd, leaving no remedy against the transferee. 

Commentary 

This case highlights the complexities of TUPE when employees object to transfers due to substantial changes in working conditions. The decision clarifies that: 

• Employees retain protection against detrimental changes but must navigate procedural choices carefully. 

• Transferors must handle objections cautiously, ensuring clarity in communications and termination processes. 

Practical Implications for Trade Union Representatives: 

• Advise members to document concerns about detrimental changes during TUPE processes. 

• Ensure employers conduct thorough consultations to minimise disputes.