EAT TRANSFER OF UNDERTAKINGS – Service provision change
A Judge was entitled to hold there had been no service provision change where a centralised taxi booking administration service was taken back in house by the client of the service and no longer thereafter operated as a centralised service. The element of centrality, coupled with some particular features of the job the Claimant taxi administrator had done, no longer existed after the change. The service as operated after the change by the client was held to be essentially a different activity, and the Judge held entitled as to find.
Langstaff P J said: ‘the identification of ‘activity’ is critical in many cases. The case before us is an example of that. An activity may be more than the sum of the tasks that are performed in respect of that activity, but a Tribunal must be careful to ensure that it does not take so narrow a view of that which ‘activity’ consists of, in the case before it, as to forget that the context in which it decides ‘activity’ is the context in which it is ever likely that employees’ continued employment will be affected. If for instance the activity performed by a given employee is after a service provision change to be performed by two or three employees in the transferee or, in a 3(1)(b)(iii) situation, by the client itself, then it may well be that the approach of the Tribunal should recognise that the same activity may well be carried on, though it is performed now by three people rather than by the one person who earlier performed it. These questions are, however, fundamentally questions of fact and degree.’
Judges:
Langstaff P J
Citations:
[2012] UKEAT 0041 – 12 – 1402
Links:
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 2006
Jurisdiction:
England and Wales
Employment
Updated: 06 October 2022; Ref: scu.452333
