Transfers of Undertakings (Protection of Employment) Regulations 2006, more commonly known as TUPE, are designed to protect employees when the business they work for is sold, merges, or a service they work on is outsourced or brought back in-house.

But what happens when a transfer significantly changes an employee’s working conditions for the worse? The recent case of London United Busways Ltd v (1) Mr V De Marchi (2) Abellio London Ltd: [2024] EAT 191 provides useful guidance on this very point.

The Background

Mr De Marchi had worked as a bus driver for over 20 years. When London United Busways Ltd lost the contract for the route he worked on, the contract was taken over by Abellio London Ltd. TUPE was engaged, meaning that Mr De Marchi’s employment would transfer to Abellio.

However, the route was now to be served out of a different depot, increasing his commute from 15 minutes to over an hour.

Mr De Marchi objected to the transfer under regulation 4(7) of TUPE, arguing that the change amounted to a substantial change to his working conditions to his material detriment. He did not want to sign a new contract with London United, nor did he wish to resign. His employment transferred regardless, and shortly afterwards he was signed off sick. Abellio later dismissed him.

The Tribunal’s Decision

The case reached the Employment Appeal Tribunal (EAT), presided over by The Honourable Mrs Justice Ellenbogen DBE.

The EAT held that:

Regulation 4(9) was engaged – the change was both substantial and detrimental.
London United Busways Ltd had in effect dismissed Mr De Marchi when it attempted to transfer him.
He was therefore treated as dismissed on the transfer date – not on the later date when Abellio sought to terminate his employment.

At paragraph 40(c) of the judgment, the Tribunal stated:

“…the Claimant is to be treated as having been dismissed by the First Respondent transferor, which is the only entity against which any liability for that dismissal could lie.”

Why This Matters for Employers

This case is a clear reminder that TUPE transfers are complex and high-risk. Employers must carefully consider whether a transfer would result in substantial changes to employees’ working conditions, including location and travel time, and whether those changes might amount to a material detriment.

Failure to handle the process correctly can result in findings of unfair dismissal, with liability resting with the transferor employer (the original employer) even after the transfer has taken place.

Our Advice

If you are an employer facing a TUPE transfer, it is crucial to:

Seek early legal advice to assess risks and obligations.
Consult meaningfully with affected employees.
Work closely with HR professionals to manage the process smoothly.

Transfers are rarely straightforward, but with the right advice you can minimise legal risk and protect both your business and your employees.

If you would like advice on a TUPE transfer, dismissals, or employee consultation, contact Kat Moody in our Employment Law team.

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