Is this this reasonable?

MoneySavingNovice

The following question has been asked by a former colleague. I don't know the answer so would appreciate your support in providing a good answer.

The Background
The organisation for which I currently work is in the process of closing the site where I am based. Some people are due to be made redundant while others have been instructed that there role is relocating to another site.
I'm one of those people who have been instructed to relocate. The problem I have is related to travel time. The new site is approx. 35 driving time from the old, however I don't drive. I live approx 20 minutes bus trip to my current place of work. To my new place of work the travel time is approx 2 hours 10 minutes by public transport. It's a bus ride, followed by a further bus ride and then a train trip, all with different tickets and ironically to get there I more or less have to go past the gates of my old place of work. I don't consider that a 4hour 20 minute round trip is desirable, sustainable or reasonable. I live in the countryside and hence public transport options are somewhat limited. I have investigated different options, like getting a lift and a taxi but for various reasons, including no-one doing the trip and cost factors, these possibilities are all so-far proving to be a dead-end.
Despite their claim of being helpful the organisation has advised that they will not assist in any way and that getting to work is my problem. While I like my job I have got to the point that I don't feel that there is any alternative but to leave. They have advised that if I leave this is a resignation being my own free will and thus they will not be making me redundant. My contract is covered by TUPE, and states that I need to work on either of the then organisations sites, the other of which has already been closed. The location of the new site is not mentioned or covered by my contract.

The Question
Is the organisations behaviour reasonable? Is there a possibility that I could win a case of constructive dismissal?

Thanks for your help, let me know if I need to provide further information.

Undervalued

The Question
Is the organisations behaviour reasonable?

Probably yes

Is there a possibility that I could win a case of constructive dismissal?

Very unlikely (less than 3% of CD cases are won)

Generally how somebody gets to work is their problem and not the employers so the fact that he doesn't drive is largely irrelevant.

A "35 min drive" would probably be held to be reasonable. Longer distances have been but no two cases are the same. Plenty of people travel far further either by car or public transport.

It is an employer's duty not to make people redundant if it can be avoided. They would no doubt claim there are sound business reasons for the move and that the consequences on jobs would be serious if they did not relocate. It is not in a tribunal's remit to assess the soundness or otherwise of a business decision.

MoneySavingNovice

Thanks for your reply.

Unfortunately you have rather confirmed my thoughts.


I think the primary issue not surrounding the rights and wrongs of surrounding the site closure but the new circumstances mean that there is not a reasonable way for my ex-colleague to get work and home again within a reasonable time. He can’t drive, so public transport is the only option for him. Public transport takes 4hours 20 mins which, due to timetable constraints makes the day 16hours 15 mins long (actual work is 8 hour per day). I can see the possibility of Health and Safety issues here. Hence the actions of the organisation make it practically impossible for him to continue to undertake his job on this new site and for the organisation to fulfil its duty of care. I have since found out the earliest arrival time is around 9:15, due to timetables etc, which is also after the formal start time of the organisation which I can see might be an issue. Going home his arrival time would be 10:20 again due to time tables. An effective working day of 16 hours 15 minutes is not reasonable or very safe in my view.
His contract is very clear that he is only required to work on two sites, one of which is already closed and only slightly further than his current place of work. This new site is not mentioned within the contract in place.


Practically speaking I can’t see a way for him to continue in his job, which is not his fault, yet the organisation are being very unhelpful to the point of being obstructive (in his view).

Mersey_2

The whole point of TUPE is to protect workers' rights.


Whilst I tend to agree that he'd be less than likely to win (I'd rate his chances at a fair 40%), employers have to be very careful that their actions and treatment of their employees when making changes does not amount to a fundamental breach of contract.


This can then very easily be deemed a constructive dismissal ie the employee had no reasonable choice and was forced to resign.


See Employment Appeal Tribunal ruling last week:


Aguebor v PCL Whitehall Group & Another UKEAT/0078/14


He should seek legal advice. Ideally the company may offer to pay for this, but either way he should seek advice to assess his options.


[PS. He can also request flexible working and so a suggested eg 9.30am start time on his part cannot be refused without consideration by the company. I of course recognise he may not want to work a 16 hr day; but that is not of his making.]

Nebulous2

What is the timescale for the move? Is there any possibility he could learn to drive? Any other alternatives, if it is 35 minutes by car, how long by scooter / moped?

p00hsticks

Mersey wrote: »

The whole point of TUPE is to protect workers' rights.

But there are 'get out clauses' which allow the employer to vary the terms of peoples contracts under TUPE for various reasons (I can't remember exactly but the acronym ETO springs to mind... Economic, something and Organisational)

I feel for your OP as I've had the same in the past .... I suggest they ring ACAS for advice but not to get their hopes up....

MoneySavingNovice

Nebulous2 wrote: »

What is the timescale for the move? Is there any possibility he could learn to drive? Any other alternatives, if it is 35 minutes by car, how long by scooter / moped?

June, so there is some time.

[FONT=&quot]Knowing the person, and in the nicest possibly way, I don't think that passing a driving test is likely, ever really. He has tried multiple times before. The route is mostly fast A road and motorway, so a scooter is out. I also don’t want to suggest this as I feel that it will be unsafe for him.[/FONT]

967stuart

I'd 100% be looking at legal advice here.
Over 4 hours traveling time (in my opinion) isn't reasonable.

beckstar1975

In that case does he have a condition that means he CANNOT drive? If he does you may be able to use that in the case of constructive dismissal?

Undervalued

967stuart wrote: »

I'd 100% be looking at legal advice here.
Over 4 hours traveling time (in my opinion) isn't reasonable.

But it is only that because he doesn't drive, otherwise it would be 35 mins.

There are plenty of rural workplaces within 35 mins drive of me that would take hours to reach by public transport but, in the vast majority of circumstances that is not the employer's problem.

What about investigating a regular deal with a taxi / private hire firm? OK, it won't be all that cheap but then neither will some torturous 4 hr train / bus journey.

Unless he can easily get a new job being unemployed won't be cheap either! Even if he manages to get some redundancy (unlikely in my view) unless he has been there for a very long while it won't be many months pay.

If the firm value his services then maybe they would make a contribution to the cost? If you don't ask you don't get.

takman

When someone is on Job Seekers Allowance travel times of 60-90 minutes by car are deemed to be acceptable by them when looking for jobs. So moving to a location that is only 35 minutes car drive further away is in no way unreasonable. It's not the company's fault they are unable to pass a driving test.