Employment tribunal and court judgments | January 2025

The claimant, Mr De Marchi, was a bus driver for London United Busways (LUB) working out of a nearby depot within walking distance. LUB lost the contract for operating the Claimant’s bus route to Abellio London (AL). As the Claimant was assigned to that bus route, he would TUPE transfer to AL, unless he objected. However, if he transferred, he would be required to work out of a depot over an hour away, which would have caused him difficulties as he didn’t own a car. He stated that the increased commuting time would disrupt his life.

Mr De Marchi was given options by LUB, including to transfer to AL under TUPE, accept alternative employment with LUB (with new terms) or resign receiving only outstanding holiday pay and salary. Instead, Mr De Marchi asked to be made redundant by LUB, which they refused to do.

LUB treated Mr De Marchi as having objected to the transfer and terminated his employment according to TUPE 2006, meaning he did not receive notice pay or a redundancy payment.  Mr De Marchi brought proceedings against LUB and AL.

The EAT found that Mr De Marchi had been dismissed by LUB under TUPE 2006, specifically reg 4(9) as it involved a substantial change to the employee’s working conditions to the material detriment of him. LUB and Mr De Marchi appealed to the EAT.

The EAT dismissed both appeals. The EAT agreed with the Employment Tribunal’s view that the change to Mr De Marchi’s working conditions constituted a substantial and detrimental change under TUPE 2006, reg 4(9) to treat his termination as a dismissal, not a mere objection. Moreover, his objection to the transfer due to the substantial changes meant his contract was not transferred to AL and instead LUB remained responsible for the contract termination.

The EAT confirmed that where there is a substantial change in working conditions to the material detriment of an employee in a transfer, that employee may (but is not obliged to) treat the contract as terminated.  This case underscores the importance of thorough and comprehensive consultation processes with employees to minimise potential disputes.

Where an employee’s objections are caused by a perceived material detrimental impact of the transfer on them, there should be consideration of appropriate indemnities in the commercial contracts.

In March 2021, Sadia Shakil informed her employer – Samsons Limited (“Samsons”), a small property development company – that she was unwell due to morning sickness.

Having become aware of her pregnancy, the next day Samsons reduced her work to two days per week. Around 6 months later, Samsons then wrote to the Claimant suggesting that she had been provisionally selected for redundancy. She was subsequently dismissed on 31 September 2021, one day before her maternity leave was due to commence. Ms Shakil commenced proceedings against Samsons arguing that she was dismissed because of her pregnancy and not because of the suggested redundancy situation.

The Employment Tribunal held that the reduction of the claimant’s work to two days per week was because of her pregnancy-related illness and that the reason for her dismissal was her pregnancy. The Employment Tribunal found that the redundancy was a sham.

In respect of assessing injury to feelings, the Employment Tribunal awarded the claimant £5,000 (which is in the lower Vento band) but did not explain why.

The Employment Appeal Tribunal stated that the Employment Tribunal’s analysis was “wholly inadequate”. It held that it was hard to see how the injury to feelings would not come within the middle band given the period of time over which the treatment occurred and the effect the treatment had on the claimant. In particular, the Employment Appeal Tribunal highlighted the following three key issues:

1. Firstly, while the award must compensate for the discriminatory treatment, it should be considered whether injury to feelings has been exacerbated by the fact of pregnancy;
2. Secondly, while the respondent company’s financial resources were limited, this should not justify reducing the injury to feelings award as the Employment Tribunal apparently did; and
3. Lastly, false assertions in the respondent’s response and a message sent to the claimant warning her of publicity were not properly considered in assessing the injury to feelings award.

The Employment Appeal Tribunal sent the case back to the Employment Tribunal for the level of the award for injury to feelings to be reassessed.

While the case is a reminder of Employment Tribunals’ duty to correctly assess the injury to feelings award via the Vento bands, it also serves as a cautionary reminder to employers of the financial cost potentially associated with pregnancy discrimination. In particular, limited financial resources won’t justify a reduction in the award, nor will distress experienced by the claimant, which is not directly caused by discriminatory treatment, but which is otherwise exacerbated by it. Moreover, employers should conduct litigation responsibly, avoiding any form of threatening or intimidatory behaviour.