lornestewart_EAT1013
EAT TRANSFER OF UNDERTAKINGS
Service provision change
Transfer
R3 carried out repair and maintenance work for Cornwall Council under a ‘framework agreement’; some types of such work were given to and done by R3 under obligations in the agreement; for other types of work the Council could place it elsewhere and R3 could decline it; but provision was made for such work in the agreement and in practice the Council gave all such work to R3 and R3 accepted it.
After a re-tendering process A replaced R3 under an agreement containing similar provisions to the agreement with R3. The Claimants (R1 and R2) were employed by R3 mostly on R3’s work for the Council. A declined to take them on under TUPE. The Employment Judge found that, although one of the Claimants in particular worked for R3 on work which the Council did in practice but were not obliged to give to R3 before the service provision change, both were assigned to the organised grouping of employees which was the subject of the service provision change and became employees of A.
Held: on appeal by A
(1) It was not necessary for the work which the Claimants did to be work which the Council were obliged to provide to R3 (or A). The essential questions, as derived from Metropolitan Resources v Churchill Dulwich UKEAT/0280/08 and Enterprise Management v Connect-Up UKEAT/0462/10, focused attention on what was actually being done before and after the service provision change. The EJ had made findings of fact which answered these questions; perversity was not argued.
(2) The EJ had made adequate findings of fact; he was entitled to make those findings.
Appeal dismissed.
Jeffrey Burke QC
[2013] UKEAT 0408 – 12 – 0110
Bailii
England and Wales
Employment
Updated: 01 November 2021; Ref: scu.516032