‘4.— Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to …, on the completion of a relevant transfer — (a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee. ... (7) Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee. (8) Subject to paragraphs (9) and (11), where an employee so objects, the relevant transfer shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor. (9) Subject to regulation 9, 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 paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer. (10) No damages shall be payable by an employer as a result of a dismissal falling within paragraph (9) in respect of any failure by the employer to pay wages to an employee in respect of a notice period which the employee has failed to work. (11) Paragraphs (1), (7), (8) and (9) are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice in acceptance of a repudiatory breach of contract by his employer.’
‘Findings of Fact 40. The Claimant was employed as a bus driver by the First Respondent from7 January 2003 . He commenced his employment at the First Respondent’s Shepherds Bush garage, and in August 2003 moved to the Stamford Brook garage, which is approximately a 15-minute walk from his home. He walked to and from work. He does not own a car. 41. The Claimant’s contract of employment contained the following term in relation to his place of work (my emphasis): 16. You must be prepared to work at any of our garages. When you have passed your PCV driving test you will be allocated to work at a garage, the location of which depends upon our recruitment needs at that time. After a period of time you may apply for a transfer to a garage closer to your home. Such transfer requests are dealt with in order of receipt, and will usually be agreed if vacancies exist in the garage to which you wish to transfer and if you can be replaced in your own garage. On transferring you will be subject to the pay and conditions of the new garage and staff generally take up a position on the junior rota in the receiving garage. 42. The First Respondent operates 8 garages across London, some are [a] considerable distance away from the Stamford Brook garage. 43. For approximately the last 4 years of his employment with the First Respondent the Claimant drove a bus on the route 27. He worked 5 days a week, typically starting between 4.30pm and 5.15pm and finishing between 1.30am and 2am. 44. Transport for London (TfL) frequently re-tender bus routes. As a result of one of such re-tendering exercises in 2019, the First Respondent lost the contract for operating the route 27 to the Second Respondent. That was announced to all staff of the First Respondent on25 March 2019 . 45. It was accepted by the First and the Second Respondent that the transfer of the cont[r]act would be “a relevant transfer” for the purposes of TUPE and that all drivers (53 day drivers and 6 night drivers) assigned to the route 27 would transfer under TUPE to the Second Respondent, unless they object[ed]. In preparing for the transfer, the First and the Second Respondent applied the TfL TUPE Guidelines of January 2016, which is a non-legally binding “best practice” guidance for transport operators on TUPE transfers. 46. In July 2019, the First Respondent engaged in TUPE consultations with its recognised trade union, Unite the Union. I[t] appears that initially the union disputed that TUPE would apply, however, shortly thereafter accepted that it would. 47. In or around June - July 2019, the Claimant learned that his route was going to transfer to the Second Respondent and would be operated out of the Second Respondent’s Battersea garage. 48. During August 2019, the First Respondent held “drop-in” meetings with affected drivers to discuss the transfer and explain options available to them. The options were: (i) to transfer with the route to the Second Respondent, which would require moving from Stamford Brook to Battersea, or (ii) to object to the transfer and sign a new contract with the First Respondent, which would give them the option, subject to availability, to stay at Stamford Brook or move to another garage of the First Respondent (the drivers were requested to give their two preferred locations), but they had to agree to increase their maximum Time On Duty (“TOD”) from 9 hours to 10 hours, or (iii) if they did not wish to transfer or accept employment with the First Respondent on the new terms, they could resign. 49. The “drop-in” meetings were arranged for 12, 14, 19 and21 August 2019 , and the drivers were invited to attend the meetings alone or with a workplace colleague or a trade union representative. 50. On16 August 2019 , the Claimant together with his union representative, Mr John Reid, attended a meeting with Ms Rahman. The meeting was arranged to discuss the Claimant’s grievance unconnected with the TUPE transfer. However, Ms Rahman used that opportunity to also tell the Claimant about the transfer and the three options available to him. 51. At the meeting, having explained the three options, Ms Rahman asked the Claimant if he had any questions and he said that he did not. She gave him a letter explaining the three options and a preference form, which she asked the Claimant to fill in and return by6 September 2019 . The Claimant asked whether redundancy was an option and Ms Rahman said that it was not. 52. Mr Reid, being a representative of the RMT Trade Union, which the Claimant was a member of, but which was not recognised by the First Respondent for the purposes of collective bargaining or TUPE consultations, did not wish to discuss the options at the meeting. His view was that these matters [lay] outside his role at the meeting, and the meeting itself had been arranged to discuss the Claimant’s grievance and it was not a “drop-in” meeting to discuss the TUPE transfer. 53. On19 August 2019 , the Second Respondent wrote to the affected drivers explaining that with effect from9 November 2019 their contracts would transfer to the Second Respondent under TUPE on the existing terms, including with its letter a FAQs document, which, inter alia, contained the following FAQs: Will I work in the same way as I do now for my current company? Your work activities will remain the same, however the individual duty times will differ and your new base will be the Battersea Depot. You will be given light running route training and a full depot induction. What will happen to my staff pass? You will continue to receive the benefits of the TfL staff pass. London United and Abellio will write to TfL to notify them of your transfer to Abellio and your pass will carry over with your transfer — the same will go for your nominee pass if you have one. 54. The Claimant saw the Second Respondent’s letter and the FAQs document on the announcement wall in the Stamford Brook garage. 55. On21 August 2019 , Ms Rahman wrote to the Claimant reminding him of the three options and asking him to return the preference form by6 September 2019 . The letter said that if the preference form were not received by that date, the First Respondent would assume that the Claimant wished to transfer to the Second Respondent with the route. The preference form, the First Respondent’s proposed new contract, with changes highlighted, the Second Respondent’s welcome letter and its “measures” letter were included with the letter. 56. On5 September 2019 , the Claimant emailed his trade union representatives his draft response to the First Respondent on the three options. The essence of his position was that the transfer was not suitable for him because of the additional travel time to the Battersea garage, the proposed new contract was not in his interest to sign because of the increase in the TOD, no guarantee of a minimum work and a reduction in the paid meal break time, resignation was not an option either - “definitely no”. Therefore, his view was that the only option left for him was redundancy, which he wished to formally request. 57. On6 September 2019 , the Claimant sent an email to Ms Rahman essentially on the same terms as in his draft to his union representatives. The letter read (my emphasis): “Tupe option, going with the route 27 to Abellio and keeping my original contract. this is not an option for me because it will disrupt my life, over 1 hour longer traveling to work and an extra hour returning from work, this will add to fatigue and tiredness extending my working day by at least 2 hours, that is at least 10 hours per week, i have been at Stamford brook garage for 18 years and i live 15 minutes walk away, the reason for my original application was for the locality of the job, there fore i reject this option of Tupe as unsuitable for me. ... not signing the contract does not mean I agree to Tupe, I do not agree to Tupe as stated above after a lot of consideration the conclusion that i have come to is 1) Tupe with the 27 route is not suitable for me. 2) It is not in my best interests to sign the new contract. 3) Resignation is not an option definitely no. 4) I stand on my original contract there fore the only option left for me is redundancy. 5) I Vittorino De Marchi hereby formally request redundancy.” after a lot of consideration the conclusion that i have come to is 58. On10 September 2019 , Ms Rahman responded to the Claimant saying that she wanted to arrange a meeting with him to discuss his letter and asking if he wished his union representative to attend. 59. There was some confusion with arranging a meeting because there were other meetings planned to discuss the Claimant’s grievance and his safety concerns related to a particular bus model he was required to drive. These were separate matters unconnected with the TUPE transfer. 60. On4 October 2019 , Ms Knight, HR Business Partner of the First Respondent, wrote to the Claimant explaining the three options available to him and reiterating that redundancy was not one of them because his job did “not cease to exist.” The letter went on to say (my emphasis): If you do not wish to transfer to Abellio or accept alternative employment with RATP Dev London, you can object to the transfer. This will have the effect of ending your employment with the company on9 November 2019 . You will not be treated as having been dismissed and will not be entitled to any payments in respect of notice pay or redundancy pay. The only payment you will be entitled to is in respect of accrued salary and accrued untaken holiday. I note that you had objected all the options available as you had assumed that redundancy applies. The company would therefore like to give you another opportunity to tell us what you prefer to do. Please can you put a written memo to your staff manager or General Manager by Wednesday9 October 2019 confirming which option you prefer: 1. You can retain your terms and conditions by transferring with the route to Abellio on9 November 2019 2. Subject to vacancies available, you can accept alternative employment with London United on an understanding that this will require you to accept new terms and conditions (increase in TOD to 10 hours) but with preserved continuity of employment and pay. Please note alternative employment will be based on garage and rota availability. 3. If you do not wish to transfer to Abellio or accept alternative employment with RATP Dev, you can formally object to the transfer and your employment will end on9 November 2019 . If we do not receive a written memo by this date we will assume that your employment ends with London United on8 November 2019 by virtue of your previous objection. 61. On4 October 2019 , the Claimant went on a self-certified sick leave until6 October 2019 due to stress, which he says was caused by the First Respondent’s letter of4 October 2019 . 62. On8 October 2019 , the Claimant emailed Ms Knight. His email was largely in relation to his grievance, safety concerns and what he perceived as the company ignoring his requests and not answering his questions. However, in that email he again stated that he could not accept the transfer (“i gave you reasons that i can not except (sic) TUPE”). 63. There were further attempts to arrange a meeting with the Claimant. On11 October 2019 , the Claimant emailed Ms Knight saying that he did not wish to have a meeting with Ms Rahman. There were further email exchanges with the Claimant to arrange a meeting with Ms Knight upon her return from holidays. 64. In the course of that correspondence, on23 October 2019 , the Claimant wrote to Ms Knight and Mrs Biddle (the First Respondent’s Staff Manager) stating again that he had not accepted the TUPE transfer (“also I would like to remind you that I have not excepted (sic) your proposal of Tupe and gave you the reasons why it's not suitable for me”) and that he did not wish to enter into the new contract with the First Respondent, but that should [not] be taken as him agreeing to transfer under TUPE to the Second Respondent (“not agreeing does not constitute agreeing to Tupe”). He said that in the circumstances he considered that redundancy was “fair” and that he would accept it. 65. On5 November 2019 , the Claimant eventually met with Ms Knight. He was accompanied by Mr Reid. At the meeting, the three options were discussed, and the Claimant was told again that redundancy was not available. On the same day, following the meeting, Ms Knight wrote to the Claimant confirming the discussion and the available options. The letter stated (my emphasis): “As you do not wish to accept the alternative employment or resign from your current employment, your employment will transfer with the route 27 to Abellio on9 November 2019 . Please note that this means that8 November 2019 will be your last day of employment with London United. Please note that Abellio will be informed that you will be transferring with the route.” 66. On06 November 2019 , the Claimant self-certified himself as being off sick from 7 November 201[9] due to anxiety. 67. On7 November 2019 , Ms Knight sent the Claimant a further letter by email, in which she appears to have changed the First Respondent’s position on the Claimant’s employment status as follows (my emphasis): “You objected to transfer in writing on6 September 2019 despite further correspondence and our meeting you[r] stance remains the same. Under the TUPE Regulations to object to the transfer means that your employment will end on the transfer date by reason of your objection. You would not be treated to have been dismissed and would have no right to notice pay or redundancy pay. In effect, it is like an immediate resignation. I hope that this makes the position clear and I would like to take the opportunity to thank you for your service at the Company.” 68. On8 November 2019 , Mrs Biddle sent the Claimant a letter referring to Ms Knight’s email of7 November 2019 and confirming that his employment would end on that day,8 November 2019 by reason of his resignation (my emphasis). “I write following the letter sent to you from Ngoma Knight, HR Business Partner dated 7th November regarding your employment with the company. I can confirm, as stated in the letter, that your employment will end today,8th November 2019 by way of reason of immediate resignation. Your final payment will be made on Friday15th November 2019 . Your P45 will be sent to you in due course and you will be paid the following amounts: (a) All pay up to and including the effective date of termination of your employment (b) Accrued holiday pay of 2 days.” 69. On8 November 2019 at 13:54, the Claimant replied to Ms Knight by email stating that he had not resigned and did not wish to resign. He also reiterated that TUPE was not suitable for him and that he did not wish to sign the new contract for the reasons he had stated before. 70. On8 November 2019 at 14:11, Ms Knight replied as follows (my emphasis): “Thank you for your email. I note that you have confirmed that you have not resigned and you do not wish to accept the alternative employment we have offered you. I have therefore informed Abellio that you will be transferring with the route tomorrow. Please note that this now closes this matter.” 71. On8 November 2019 at 15:24, the Claimant replied to Ms Knight’s email again stating that he had not resigned and would not sign the new contract and he would not transfer under TUPE with the route. He said that he was expecting redundancy and would not resign. He also said that he was on sick leave and was expecting to receive sick pay. 72. On9 November 2019 , the drivers assigned to the route 27, and who had not objected to the transfer, transferred from the First Respondent to the Second Respondent under TUPE. 73. On11 November 2019 , the Claimant was signed off sick by his GP for two weeks, until24 November 2019 , due to anxiety and depression. He sent the sickness certificate to the First Respondent, which Ms Knight forwarded to the Second Respondent, and by email of12 November 2019 advised the Claimant to contact Ms Debbie McDonnell, HR Manager of the Second Respondent for any future correspondence. In that email she also wished the Claimant well with his “employment with Abellio”. 74. On13 November 2019 , Ms McDonnell sent the Claimant a welcome letter, acknowledging that he was off sick and inviting him to contact his new manager to discuss return to work, induction, and any required training. She asked the Claimant to provide his bank account details to set up his payroll and process his sickness payments. 75. On22 November 2019 , the Claimant telephoned Ms McDonnell and told her that he had objected to the TUPE transfer to the Second Respondent. On the same day he sent Ms McDonnell an email confirming that. 76. On25 November 2019 , the Claimant’s sick leave was extended until1 December 2019 . 77. On27 November 2019 , Ms McDonnell sent the Claimant a letter confirming that he had not transferred to the Second Respondent, enclosing his P45 showing his leaving date as10 November 2019 . 78. That communication was followed by email exchanges between Ms McDonnell and Ms Knight regarding the employment status of the Claimant. The First Respondent’s position was the Claimant’s employment had transferred to the Second Respondent because he had refused to accept the new contract and had confirmed that he was not resigning, and therefore “the default position” was that his contract of employment had transferred to the Second Respondent under TUPE. The Second Respondent’s position was that because the Claimant had objected to the transfer of his employment to the Second Respondent, his employment did not transfer by operation of TUPE and the fact that he had refused to resign was irrelevant. 79. On28 November 2019 , the Claimant emailed his sickness certificates to the First Respondent asking for sick pay. Ms Knight replied saying that she was forwarding them to the Second Respondent as the Claimant’s employer and re-stating the First Respondent’s position in the following terms: “As you rejected our offer to stay with London United on alternative employment and also objected to the option of resigning rather than transferring via TUPE, your employment transferred via TUPE to Abellio with the route 27.” 80. The Claimant replied, copying Ms Rahman, Mrs Biddle, his union representatives and Ms McDonnell, reiterating his position that he had rejected the TUPE transfer and the new contract. 81. On30 November 2019 , Ms Knight emailed the Claimant setting out the First Respondent’s position that the Claimant’s employment had transferred to the Second Respondent under TUPE on9 November 2019 and stating that the First Respondent would not correspond further on this matter. 82. On2 December 2019 , Ms McDonnell emailed the Claimant telling him that the Second Respondent was still liaising with the First Respondent on his matter and asking the Claimant to provide some further documents. Having not received a reply, on30 December 2019 , Ms McDonnell sent a reminder. The Claimant did not reply. His evidence, which I accept, are that the reason for him not replying was because he did not consider himself employed by the Second Respondent. 83. In early December 2019, the Claimant started to look for another job and attended job interviews for a bus driver position on 6 and9 December 2019 . The positions were at the Westbourne garage and in Willesden. He was unsuccessful. 84. On13 January 2020 , Ms McDonnell sent the Claimant a letter inviting the Claimant to attend a meeting to discuss his employment. In her letter, Ms McDonnell explained that because redundancy was not an option offered by the First Respondent, “the default position [was] that [the Claimant] [had] transferred employment to Abellio London bus automatically on9 November 2019 with Route 27”. She asked the Claimant to attend a meeting on28 January 2020 to discuss his return to work with his manager. The letter stated: “Please note, that should we not hear from you, or should you decide not attend the meeting, you will be considered absent without authorisation and we will write to you under these terms thereafter.” 85. The Claimant did not reply to this letter. His evidence [is] that he did not receive that letter or the Second Respondent’s letter of3 February 2020 because both had a wrong address: 21 Ellesmere Road, Chiswick, London W4 4QJ, and the Claimant’s correct address is: 21 Ellesmere Court, Ellesmere Road, Chiswick London W4 4QJ. 86. I do not accept his evidence on that matter. He admitted receiving the Second Respondent’s letter of13 November 2019 and P45. Both had the same “wrong address”. He also admitted receiving the First Respondent’s letters of 5, 7 and8 November 2019 , which all had the same “wrong address”. W4 4QJ is the correct post code for the Claimant’s “correct address”[.] 21 Ellesmere Road, Chiswick, London has a different post code – W4 3DU. 87. Therefore, on the balance of probabilities, I find that the Claimant did receive the Second Respondent’s letters of13 January 2020 and3 February 2020 . I accept that he might have chosen not to open and read them. 88. On3 February 2020 , the Second Respondent wrote to the Claimant stating that because he had failed to attend the meeting or otherwise engage with the company the decision had been taken to terminate the Claimant’s employment. The letter informed the Claimant that he had the right to appeal the decision. Applying “the ordinary course of post” rule, the letter should be deemed to have been received by the Claimant on the second business day –5 February 2020 . The Claimant did not reply to the letter. Commuting distance between the Claimant’s home and the Battersea garage 89. The Claimant’s average commute times from home to the Battersea garage and back, based on his usual work schedule (starting between 4.30pm and 5.15pm and finishing between 1.30am and 2am), would have been: a. going to work – between 45 minutes and 1 hour 5 minutes. The fastest route would involve the Claimant walking to Chiswick train station (15 - 20 minutes), taking a train to Queenstown Road station (15 - 20 minutes) and then walking from Queenstown Road station to the Battersea garage (10 - 15 minutes). b. returning home - approximately 1 hour 15 minutes, requiring the Claimant to travel on Night buses with one or two interchanges and to walk to and from bus stops for approximately 30 minutes.’
‘128. I agree with the Respondents’ submissions. In my judgment, the Claimant was clear in his words and acts that he did not wish his contract to end, he did not terminate it himself and did not treat it as having been terminated. The fact that he did not attend work after the transfer, in my judgment, is not inconsistent with him not treating his contract as having been terminated. He was off sick until early December 2019. He, however, continued to submit his sick notes and demand sick pay from the First Respondent. I do not accept Ms Price[’s] argument that the Claimant’s “counter-offer” in any way shows that he treated the contract as having been terminated. On the contrary, he was trying to negotiate an acceptable termination of the contract while being at pains to keep it “alive”, because he knew or was so advised that by walking away from the contract, he would be significantly reducing his chances of getting redundancy. For these reasons, I find that he did not treat his contract as having been terminated.’
‘131. In my view, there are four possible answers to this question: a. the Claimant’s extant objection to the transfer operates as him treating his contract of employment as having been terminated under Regulation 4(9) and him being treated as having been dismissed; or b. the Claimant’s objection to the transfer must stand, however, having chosen not to treat his contract of employment as having been terminated he cannot be treated as having been dismissed under Regulation 4(9) and instead his extant objection has [the] effect of terminating his employment by operation of law under Regulation 4(8); or c. the Claimant[’s] contract of employment transfers to the Second Respondent under Regulation 4(1) despite his objection by reason of the Claimant choosing not to treat his contract as having been terminated; or d. the Claimant[’s] contract of employment does not transfer to the Second Respondent under Regulation 4(1) by reason of his objection, and he remains employed by the First Respondent until his dismissal or until he elects to treat the contract as having been terminated under Regulation 4(9). 132. Both Respondents argue that once the transfer had taken place, the Claimant’s employment ended by reason of Regulation 4(8), which shall be considered as “deemed resignation”, and it was legally impossible for the Claimant to object to the transfer and maintain his employment contract alive. 133. Mr Bailey, for the First Respondent, argues that an employee who objects to the transfer but fails to resign has no remedy, because a claim under Regulation 4(9) can only take place where the Claimant has treated the contract as having ended prior [to] it ending under Regulation 4(8). 134. Ms Cummings for the Second Respondent agrees and further submits that “any conduct of the Claimant after9th November 2019 on which the Claimant might seek to rely as demonstrating he treated his contract of employment with the First Respondent as having been terminated is irrelevant. By that stage, the Claimant’s employment had terminated by virtue of Reg 4(8)”. 135. Ms Price, for the Claimant, argues that Regulation 4(9) give[s] the employee a choice to treat his contract as having been terminated or not, and if the employee choosing not to treat the contract as having been terminated has the effect of the employee losing the protection afforded by Regulation 4(9) that would undermine the whole purpose of the regulation. 136. In my judgment, the answer (a) cannot be correct because it makes the words “may treat the contract of employment as having been terminated” devo[id] of any meaning (my emphasis). If the effect of the employee objecting to the transfer on the established grounds under Regulation 4(9) were to have the same effect, i.e. him being treated as having been dismissed, irrespective of whether he chooses to treat his contract as having been terminated or not, the words “may treat the contract of employment as having been terminated” would be superfluous. I note that these words were not in the previous version of the TUPE regulations and were included in the 2006 version to bring it in line with the EU Acquired Rights Directive (No 2001/23) and the European Court of Justice judgment in Merckx and anor v Ford Motors Co (Belgium)SA1997 ICR 352 , ECJ. 137. I find that the answer (b) is ought to be wrong too. The operation of Regulation 4(8) is “subject to” Regulation 4(9) and 4(11), the aim of which is to preserve the employee’s right in relation to “substantial change in working conditions to the material detriment” and “repudiatory breach” by his employer. As in a situation where the employer commits a repudiatory breach, under Regulation 4(9) the employee is given a choice whether to accept the substantial change in working conditions as bringing the contract to an end, or not. In my judgment, the effect of not accepting the substantial change as having the contract terminated should be the same as electing not to treat the contract as at an end by reason of the employer’s repudiatory breach, meaning that the contract remains in force. There is nothing in Regulation 4(9) to suggest that despite the employee not treating the contract as having been terminated, he, nonetheless, must be regarded in law as having been dismissed, or that should have the effect of Regulation 4(8) coming back into play. 138. In my judgment, it cannot be right that the very same objection that has brought the employee within scope of Regulation 4(9) can then operate to deprive him of the protection afforded by that regulation because the employee has chosen not to treat his contract as having been terminated, when the regulation specifically gives him that choice. 139. However, this conclusion, in my view, does not mean that the employee completely loses his right to later rely on such substantial change in treating his contract as having been terminated, with such termination still being regarded as dismissal under Regulation 4(9). Of course, the longer the employee waits or if he acts in a way to show that he has accepted the substantial change he might be taken as having affirmed the change, thus losing his Regulation 4(9) protection. 140. Further, Regulation 4(1) has the effect of preserving the employment contract, “except where objection is made under paragraph (7)”. Paragraph (7) states that paragraph (1) shall not operate to transfer the contract of employment of an employee who objects to becoming employed by the transferee. If a valid objection is made it appears there are three possible outcomes: (i) Regulation 4(8) “resignation”; (ii) Regulation 4(9) “dismissal”, and (iii) Regulation 4(9) employee choosing not to treat the contract as having been terminated. In any of the three scenarios the contract of employment does not transfer to the transferee by reason of the employee’s objection. 141. Such outcome might appear at odds with the purpose and operation of TUPE, namely “automatic transfer”. However, such “automatic transfer” is always subject to the employee’s right to object, and the employee cannot be forced to transfer his employment to the transferee despite his objection (see Katsikas v Konstantinidis1993 IRLR 179 , ECJ). 142. I find that, although the Claimant has chosen not to treat his contract as having been terminated, he never withdrew his objection. On the contrary, he kept repeating it. Accordingly, considering his clear and persistent objection to becoming employed by the Second Respondent, the Claimant choosing not to treat his contract of employment as having been terminated, in my judgment, cannot be taken as disapplying or overriding his objection. In my view, the answer (c) is also wrong. 143. The First Respondent was simply wrong in saying that the “default position” was that in the absence of the Claimant’s resignation his contract transferred to the [Second] Respondent. For these reasons, I find that his contract did not transfer to the Second Respondent. 144. Mr Bailey argues that the Claimant cannot avoid transferring to the Second Respondent and remain employed by the First Respondent. He submits that “[t]he fallacy in that reasoning is that he either had to elect to treat his employment terminated prior to the transfer (taking his chance under Reg 4(9)) or to go along with the transfer and treat his employment as terminated after the transfer; again taking his chance under Reg 4(9)”. 145. I understand Mr Bailey’s argument as saying that it was not open to the Claimant to put himself into such “limbo”. He had to decide whether he “goes across” or he “goes away”, and “staying put” was not an option he could take. 146. I disagree, because that ignores the choice of not treating his contract of employment has having been terminated, which, in my judgment, Regulation 4(9) gives to the Claimant. Further, I do not see why it must be the employee who should be “taking his chance under Reg 4(9)”, and not the employer. It is the employer who makes a change to the employee’s working conditions, and if the employer considers such change not “substantial” and/or not “to the material detriment” of the employee, it would seem logical that the employer should be taking its chance by treating the employee’s contract as having been terminated by operation of law under Regulation 4(8), and the employee should not be force[d] to make “the first move” by resigning or otherwise treating his contract as having been terminated. 147. If the employee chooses the option of not treating his contract as having been terminated under Regulation 4(9), while objecting to the transfer, in my judgment, it must follow that his contract remains with the transferor until such time as he is dismissed by the transferor or until he changes his mind and elects to treat his contract as having been terminated by reason of the substantial change under Regulation 4(9) (subject to the “affirmation” issue). 148. The Claimant’s objection under Regulation 4(7) set in motion the mechanism of Regulations 4(8) and 4(9). Having decided that the transfer would involve a substantial change in working conditions to his material detriment, the Claimant arrived at the junction where he had to decide whether or not to treat his contract as having been terminated and himself as being dismissed by the First Respondent. By making the decision not to treat his contract as having been terminated, in my judgment, he effectively kept his contract with the First Respondent alive, and by maintaining his objection to the transfer - he stopped it from transferring to the Second Respondent. 149. Mr Bailey submits that “[i]t was legally impossible to achieve what [the Claimant] wanted which was to object but to continue to be employed by [the First Respondent] on his existing terms and conditions. The only way in which his employment could continue on the same terms and conditions was to transfer.” 150. I agree, however, in my judgment, what was not legally impossible for the Claimant is to continue to be employed by the First Respondent on the terms as varied by the “substantial change” until his dismissal by the First Respondent or his acceptance of the substantial change as terminating the contract. That is because, in my judgment, Regulation 4(9) gives the Claimant that option. 151. It might be argued that from the practical point of view, the First Respondent simply could not perform the Claimant’s contract as varied by the “substantial change”. It did not have a garage in Battersea, nor could it operate the route 27 bus service after9 November 2019 . However, in those circumstances, it was open to the First Respondent to terminate the Claimant’s contract, as, I find, it has done (see below). 152. For these reasons, I find that the correct position is the answer (d), and that in those circumstances the Claimant’s contract of employment could not and did not transfer to the Second Respondent on9 November 2019 . How and when has the Claimant’s employment ended? 153. I find that the Claimant’s employment has ended on8 November 2019 by reason of the First Respondent dismissing the Claimant by purporting to transfer his contract of employment to the Second Respondent despite the Claimant’s objection and by informing the Claimant that it no longer considered him to be its employee. The First Respondent made it clear in its letters of 5, 7 and8 November 2019 (see paragraphs 65, 67 and 68 above) that it would treat the Claimant’s employment as at an end either by reason of his resignation or the TUPE transfer to the Second Respondent. The fact that the First Respondent was wrong in its legal assessment does not mean that it was not ending the contract by its words and conduct. 154. In [her] email of8 November 2019 at 14:11 Ms Knight made it clear to the Claimant that as far as the First Respondent was concerned the matter was closed and he was no longer in the First Respondent’s employment. 155. The First Respondent informed the Second Respondent that the Claimant was their employee as from9 November 2019 , and refused to accept the Claimant’s sick pay requests, forwarding those to the Second Respondent, thus further evincing its position of treating the Claimant’s employment with it as at an end. 156. The fact that the Second Respondent mistakenly thought that the Claimant had transferred to it and made several attempts to engage with him, and for a period of time treated him as its employee, in my judgment, is irrelevant. By that time, the Claimant’s contract had been terminated by the First Respondent, and therefore it did not transfer to the Second Respondent, and there was nothing for the Second Respondent to terminate as it purported to do on22 November 2019 and again on3 February 2020 . 157. Finally, it might appear that after all that “mental gymnastics”, I have arrived at the same result as it would have been if the Claimant’s extant objection had been taken as him treating the contract as having been terminated under Regulation 4(9) (see paragraph 131.a above). In my view, there is a difference, not least in relation to remedies, in particular the application of Regulation 4(10). However, these issues are yet to be explored in these proceedings, and at this stage I make no judgment on them.’
‘If the contract of employment or the employment relationship is terminated because the transfer within the meaning of Article 1(1) involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for the termination of the contract of employment or of the employment relationship.’
‘…In my view the phrase "employer" is there deliberately introduced so as to comprehend the transferor and/or transferee as potentially subject to suit in respect of the termination/constructive dismissal, according to the time at which, and the circumstances in which, the employee exercises his right to terminate.’
‘There are two questions. First, where a transfer of an undertaking will involve a substantial and detrimental change in an employee's terms and conditions of employment can that employee treat his contract of employment as terminated by the employer and seek compensation? Second, if the answer to the first question is “Yes,” against whom is the employee to obtain his remedy: is it the transferor of the undertaking or the transferee? The starting point for seeking answers to these questions is Council Directive (77/187/E.E.C.). The purpose of that Directive is to protect the employee when his employer transfers the employer's business to another. The protection has to be that if the terms of engagement with the transferee will be significantly different from those which obtained with the transferor and the differences will be detrimental to the employee then the employee is to have the option of treating his employment as terminated and obtaining compensation. That, it seems to me, is the interpretation the Court of Justice has given to article 4(2) of the Directive in its decision in Merckx v. Ford Motors Co. (Belgium) S.A. (Case C-171/94 ) [1997] I.C.R. 352. Article 4(2) of Directive 77/187 provides: “If the contract of employment or the employment relationship is terminated because the transfer within the meaning of article 1(1) involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for the termination of the contract of employment or of the employment relationship.” …’
‘…the transfer of an undertaking operates to discharge the contract of employment both under the Regulations and at common law. …’
‘…it is clear that to the extent that the common law right of the employee to terminate and sue for constructive dismissal is preserved by paragraph (5), it is a right which exists and must be asserted against the transferor employer. The reason is twofold. First, it is the nature of the common law right and remedy that both exist in respect of the employer who wrongly terminates the employee's contract of employment and cannot be asserted against a proposed transferee. Second, it is because the introductory wording of paragraph (4A) excludes the statutory novation under paragraph (1) and the comprehensive transfer of rights and obligations under paragraph (2); thus the remedy against the transferor employer is not transferred.’
‘(1) Except where objection is made under paragraph (4A) below, a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1) above, but subject to paragraph (4A) below, on the completion of a relevant transfer — (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee. (3) Any reference in paragraph (1) or (2) above to a person employed in an undertaking or part of one transferred by a relevant transfer is a reference to a person so employed immediately before the transfer… (4A) Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee. (4B) Where an employee so objects the transfer of the undertaking or part in which he is employed shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor. (5) Paragraphs (1) and (4A) above are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice if a substantial change is made in his working conditions to his detriment; but no such right shall arise by reason only that, under that paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment.’
‘35. It follows that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, the Directive does not require the member states to provide that the contract or relationship is to be maintained with the transferor. In such a case, it is for the member states to determine what the fate of the contract of employment or employment relationship should be. 36. The member states may, in particular, provide that in such a case the contract of employment or employment relationship must be regarded as terminated either by the employee or by the employer. They may also provide that the contract or relationship should be maintained with the transferor.’ b. Moore-Bick J observed that, shortly after the judgment in Katsikas, the 1981 Regulations had been amended to take account of that decision, to include within regulation 5 paragraphs (4A) and (4B) and to make certain consequential amendments. At page 425F-G, he noted: ‘The language in which paragraphs (4A) and (4B) are cast indicates that when introducing these amendments Parliament intended to take advantage of the freedom allowed to member states by the court in the Katsikas case to regard the contract of any employee who objected to its being transferred to the transferee as having been terminated by the employee himself. The consequence of that in the ordinary way would be that he would be regarded as having resigned from his employment rather than as having been dismissed by his employer. In those circumstances the inclusion of paragraph (4B) makes perfectly good sense.’ c. Moore-Bick J further noted (at pages 425H - 426A) that, as far as could be discerned from the report in Katsikas, the employees’ objection to working for the transferee business had been a personal one and that there had been nothing to suggest that it had been based upon an expectation that the transfer would produce any substantial detrimental change to their working conditions, or any other significant disadvantage to them. In Merckx v. Ford Motors Co. (Belgium) S.A. (Case C-171194)[1997] I.C.R. 352, that additional factor had been present. Moore-Bick J then cited paragraphs 36 to 39 of the Court of Justice’s judgment in that case: ‘36. The plaintiffs claimed, moreover, that in the case in point [the transferee] refused to guarantee to maintain their level of remuneration, which was calculated by reference, in particular, to the turnover achieved. 37. In the light of that submission, it should be noted that article 4(2) provides that, if the contract of employment or employment relationship is terminated because the transfer within the meaning of article 1(1) involves a substantial change in working conditions to the detriment of the employee, the employer is to be regarded as having been responsible for the termination. 38. A change in the level of remuneration awarded to an employee is a substantial change in working conditions within the meaning of that provision, even where the remuneration depends in particular on the turnover achieved. Where the contract of employment or the employment relationship is terminated because the transfer involves such a change, the employer must be regarded as having been responsible for the termination. 39. Consequently, the answer to the second part of the question as reformulated must be that article 3(1) of Directive (77/187/E.E.C.) does not preclude an employee employed by the transferor at the date of the transfer of an undertaking from objecting to the transfer to the transferee of the contract of employment or the employment relationship. In such a case, it is for the member states to determine what the fate of the contract of employment or employment relationship with the transferor should be. However, where the contract of employment or employment relationship is terminated on account of a change in the level of remuneration awarded to the employee, article 4(2) of the Directive requires the member states to provide that the employer is to be regarded as having been responsible for the termination.’ d. At page 427D-G, he continued: ‘What, then, is one to make of paragraph 39 of the judgment and the last sentence in particular? I do not think that it can be read as merely a gratuitous reference to article 4(2) because it has been composed with the particular facts of the case in mind and it is clear from paragraph 15 that the court was seeking to formulate and answer questions which would be of assistance to the Belgian court. I also think it is clear that the paragraph must be read as a whole and that the last sentence is intended to be read as a qualification on what immediately precedes it. In other words, the court is confirming that an employee has a right to object to the transfer of his contract of employment and that member states can decide for themselves what the consequences for the existing contract shall be if he does so. However, it is also saying that if the contract is terminated in such circumstances because of some adverse change in conditions falling within the scope of article 4(2)—in that case a change in the level of remuneration—the employer must be regarded as having been responsible for the termination of the contract. I think the reference to "the employer" in that passage must mean the transferor because if an effective objectionis made the employee never becomes employed by the transferee. Moreover, it seems to me that both the language of Directive 77/187 and the judgment of the court contemplate that a remedy will be available to the employee under domestic law in such a case.’ e. It was against that background which, in Moore-Bick J’s judgement, the 1981 Regulations, and regulation 5 in particular, fell to be construed. At page 429B – 430E, he held: ‘In the present case the university did not make any change in Mr. Humphreys's working conditions. All it did was to announce its intention to transfer its undertaking to another body which, we are bound to assume, would subsequently do so. In my judgment the intention of Parliament, in so far as it is to be collected simply from the language of the Regulations themselves, was to preclude an employee who objected to the transfer of his contract of employment from pursuing a claim for wrongful dismissal arising out of the termination of his contract, at any rate in circumstances such as those of the Katsikas case …, where the objection is not based on the grounds that the transfer would inevitably bring about a change in working conditions to his detriment. That is to some extent reinforced by the statements made by ministers in both Houses during debates on the Trade Union Reform and Employment Rights Bill which we allowed the board to place before us under the principles laid down in Pepper v. Hart [1993] I.C.R. 291. I think it is fair to say, however, that when making those statements ministers do not seem to have had in mind a situation of the kind which subsequently arose in the Merckx case … and arises in the present case. It is not possible to confine oneself simply to the language of the Regulations, however, since, as I have already observed, the task of this court when faced with legislation passed to give effect to Council Directives is to adopt a purposive approach and so far as possible to construe it in such a way as will give effect to the Directive as it has been construed by the Court of Justice. … It is clear from the decisions in Katsikas and Merckx that member states are entitled to provide, as regulation 5(4A) does, that where an employee objects to the transfer of his contract of employment the transfer of the undertaking automatically terminates his contract. However I am also satisfied in the light of the decision in Merckx that article 4(2) of Directive 77/187 is to be understood as meaning that, if the transfer of an employee's contract of employment would result in a substantial change in working conditions to his detriment and he objects to the transfer on those grounds, the contract is to be regarded as having been terminated because the transfer involves a substantial change in working conditions to the detriment of the employee. The fact that article 4(2) refers to "the employer" rather than "the transferee" means that it is capable of referring both to the transferee and the transferor as may be appropriate and is therefore consistent with that approach, and there are other indications to the same effect. Article 1(1) of the Directive identifies the type of transaction to which the subsequent articles relate; it is article 3(1) which contains the operative provisions. Accordingly, the expression "because the transfer within the meaning of article 1(1) involves a substantial change in working conditions" in article 4(2) must be interpreted as referring to a case where the contract is terminated at the instigation of the employee because the transfer of his contract would lead to a detrimental change in his working conditions. Article 4(2) of the Directive is carried into effect by regulation 5(5). The first question, therefore, is whether paragraph (5) is capable of being construed as covering the case where the employee exercises the right to treat himself as constructively dismissed because the proposed transfer to the new employer would necessarily result in a substantial change in working conditions to his detriment. As I have already said, I think that the language of paragraph (5) is more apt to refer to the situation in which a change in working conditions has actually been brought about than one in which such a change is simply foreseen. However, if the purpose of the Directive is to be fulfilled, paragraph (5) must be given a generous interpretation and I do not think that it is too difficult to construe it as applying to a case of that kind. At common law any transfer of the undertaking would entitle the employee to treat himself as discharged immediately: see Litster v. Forth Dry Dock & Engineering Co. Ltd [1989] I.C.R. 341, per Lord Oliver of Aylmerton, at pp. 362H—363B and Wilson v. St. Helens Borough Council [1998] I.C.R. 1141, per Lord Slynn of Hadley, at p. 1152; a fortiori if it is one which would adversely affect his working conditions. On the assumption, which we are bound to make for the purposes of this appeal, that the transfer of the undertaking from the university to the board would necessarily have that effect, Mr. Humphreys was entitled to treat it as discharging his contract with the university.’ f. Having so held, Moore-Bick J went on to hold that Mr Humphreys was entitled to pursue a claim for wrongful dismissal and to consider which defendant was liable to Mr Humphreys, holding as follows, at pages 431C - 432G: ‘Paragraph (4A) of regulation 5 is quite explicit in its terms and indeed the whole concept of the employee's right to object to the transfer of his contract of employment points to the conclusion that the university is the party liable to him. Paragraphs (1) and (2) of regulation 5 which provide for the transfer of contracts of employment and the rights and liabilities under and in connection with them are expressly subject to paragraph (4A) which provides in terms that they shall not operate to transfer the contract of employment or the rights, powers, duties or liabilities under or in connection with it in the case of an employee who objects to such a transfer. In the face of that paragraph it is difficult to see whatcould possibly be transferred to the transferee. … The purpose of the Directive, as the court emphasised in Katsikas and Merckx, is to safeguard the rights of employees by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor, but employees are not obliged to take advantage of that protection if they do not wish to. If the employee does not object to the transfer of the employment relationship, article 3(1) of the Directive automatically resultsin the transfer to the new employer of all rights and liabilities arising under the contract, whether the employee likes it or not: see Katsikas …, paras. 22-24. That is consistent with the overall scheme of Directive 77/187. If the employee does object, however, I can see nothing in the Directive itself or in the judgments of the court in Katsikas or Merckx to suggest that the rights and liabilities under his contract are transferred to the new employer even though his employment relationship is not. As I have already indicated, I think that would be contrary to the scheme of the Directive. It would also be inconsistent with the principles which underlie the decisions in Katsikas and Merckx inasmuch as it would deprive the employee who objected to the transfer of his contract of the right to sue his original employer in respect of accrued claims. In my judgment the position under both the Directive 77/187 and the Regulations of 1981 is quite clear: if an employee objects to the transfer of his contract of employment, the transfer of the undertaking will not transfer to the transferee either the contract of employment or any of the rights or liabilities associated with it all of which remain with the transferor. … the transfer of an undertaking operates to discharge the contract of employment both under the Regulations and at common law, as the authorities to which I have already referred demonstrate. That being so, the employee who waits for the transfer to take effect can rely on his common law rights which arise quite apart from the Regulations. That being so, if Mr. Humphreys has a right to recover in respect of the termination of his contract, he is entitled to do so against the university, not the board.’ g. The dicta of Roch LJ, at pages 433G - 434G are also instructive: ‘To read article 4(2) of the Directive as meaning no more than that in the circumstances set out in that article the employer should be considered responsible for the termination of a contract of employment or the contract relationship without any resulting liability, would not, in my judgment, achieve the purpose of the Directive, namely to protect the employee. It is of some assistance that the Directive in the French language provides that in the circumstances contemplated in article 4(2) the ending of the contract of employment or the relationship of employment is to be considered as having been brought about by the act of the employer. The word "responsibility" does not appear. The answer to the first question is in dispute because it is arguable that regulation 5(5) of theTransfer of Undertakings (Protection of Employment) Regulations 1981 is subordinate to regulation 5(4B). That argument is based on the fact that regulation 5(5) does not refer expressly to paragraph (4B) of the regulation. Regulation 5(5) reads: "Paragraphs (1) and (4A) above are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice if a substantial change is made in his working conditions to his detriment; but no such right shall arise by reason only that, under that paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment." It is convenient also to set out the terms of regulation 5(4A) and (4B): "(4A) Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee. (4B) Where an employee so objects the transfer of the undertaking or part in which he is employed shall operate so as to terminate his contract of employment with the transferor but he shallnot be treated, for any purpose, as having been dismissed by the transferor." The question is whether paragraph (5) has to be read as being subject to paragraph (4B) or whether paragraph (4B) is without prejudice to any right of an employee arising apart from these Regulations. In my opinion the answer is that paragraph (4B) has no existence independent of paragraph (4A) as its opening words clearly demonstrate. There is onlyone "objection by the employee situation" namely that contemplated in paragraph (4A). If that situation arises, it prevents the statutory novation provided for in regulation 5(1) occurring. That is why in regulation 5(1) "paragraph (4A) below" is referred to and paragraph (4B) is not. Paragraph (4B) states the consequences of a paragraph (4A) objection; but it does no more than that. Consequently where paragraph (5) provides that paragraphs (1) and (4A) above are without prejudice to any right of an employee, that was all that it needed to say to convey to the reader that paragraph (5) was to override paragraph (4B). That that is the correct reading … is concluded, in my judgment, by the requirement that the Regulations must be read in a way which gives effect to the Directive as interpreted by the Court of Justice.’
‘It is clear from the wording of Article 4(2) of Directive 2001/23 that it establishes a rule that the employer is to be regarded as responsible for the termination of a contract of employment or employment relationship, whichever party is technically responsible for the termination. However, that provision does not set out the legal consequences of that responsibility. Thus it does not impose on the Member States any obligation to guarantee employees a particular compensation scheme…’
‘…I find that the Claimant’s employment has ended on8 November 2019 by reason of the First Respondent dismissing the Claimant by purporting to transfer his contract of employment to the Second Respondent despite the Claimant’s objection and by informing the Claimant that it no longer considered him to be its employee. The First Respondent made it clear in its letters of 5, 7 and8 November 2019 (see paragraphs 65, 67 and 68 above) that it would treat the Claimant’s employment as at an end either by reason of his resignation or the TUPE transfer to the Second Respondent.’
‘Under the TUPE Regulations to object to the transfer means that your employment will end on the transfer date by reason of your objection...’