EAT Transfer of Undertakings – TUPE 2006 reg 3(1)(b) and (3) – service provision change
(1) Continuity of client
Applying Hunter v McCarrick [2013] IRLR 26, CA and SNR Denton UK LLP v Kirwan UKEAT/0158/12, ‘the client’ for the purposes of s 3(1)(b) had to be the same client. There was (per Elias LJ in Hunter) no basis for seeking to apply a purposive construction to ‘the client’ for these purposes (there was no underlying EU provision requiring a purposive approach; this was a purely domestic provision).
In the present case, on the Tribunal’s findings of fact, there was no basis for the conclusion that there was continuity of the client: PCS had been engaged to provide security by Workspace plc whereas Horizon was engaged by the London Borough of Waltham Forest.
Given the facts of this case, it was only possible to conclude that PCS had not met the burden upon it of showing that there was continuity of client for the purpose of demonstrating a service provision change. That being so, the decision of the Employment Tribunal would be quashed and a finding that there was no relevant transfer substituted.
(2) Task of short-term duration
Applying Swanbridge Hire and Sales Ltd v Butler and ors [2013] UKEAT/0056/13, the question of intention for the purposes of reg 3(3)(a)(ii) required an assessment of the client’s intention immediately before the purported service provision change. The Employment Tribunal in the present case had wrongly focused on the position at the time of the hearing.
The Employment Tribunal had further erred in looking at the activities rather than the task in connection with which they were being carried out. In the present case, the Employment Judge should properly have looked at the intention of LB Waltham Forest immediately prior to its contract with Horizon in relation to the task that was to be carried out. On anyone’s case, that was to guard the premises pending demolition (with a view to the building of a new supermarket). Whether that was ‘short-term’ required an assessment of the period of time envisaged for this task. When assessing whether that (8-9 months) was ‘short-term’, the duration of the past task could be relevant. This was, however, a matter for an Employment Tribunal to determine and more than one outcome was possible. Applying Jafri v Lincoln College [2014] EWCA Civ 449, it would not be open to the EAT to simply substitute its view as to the answer to this question.
Order:
The Appeal be allowed and the decision of the Employment Tribunal PHR Judgment be substituted for a decision that the Claimant’s employment did not transfer to the Second Respondent.
Eady QC J
[2014] UKEAT 0071 – 14 – 1905
Bailii
England and Wales
Employment
Updated: 18 December 2021; Ref: scu.535550
