TRANSFER OF UNDERTAKINGS; service provision change; multiple transferees
A client local authority (‘N’) re-tendered the work for replacement of kitchens within its social housing stock. All of the work under the previous contract had been carried out by a single contractor (‘A’). A group of A’s employees had worked exclusively on the contract between N and A. Latterly those employees worked in two ‘teams’, each of which was capable of working independently of the other. When the work was re-tendered, it was split by N on geographical lines into two separate contracts which were awarded to two new contractors.
The Tribunal’s decision that there had been a service provision change under Regulation 3 of TUPE was not challenged on appeal. The Appellants submitted, however, that the Employment Tribunal had erred in its decision as to the allocation of A’s employees between the two incoming contractors. It was submitted that the Tribunal had failed to consider the respective positions of the employees individually and had failed to consider that some or all of the employees may not have transferred at all. It was further submitted that the Tribunal had placed undue weight on spreadsheets prepared by A which had not been spoken to in evidence by their author.
Between the date of the Tribunal’s Judgment and the hearing of the appeal, the Court of Justice of the European Union issued its decision in Iss Facility Services NV v. Govaerts [2020] ICR 1115. A further ground of appeal was added by amendment based upon the Govaerts decision.
Held:
Whilst the Tribunal had correctly regarded itself as being bound at the time of its Judgment by Kimberley Group Housing v. Hambley [2008] IRLR 682 and Duncan Web (Offset) Maidstone Limited v. Cooper [1995] IRLR 633, those cases must now be read subject to Govaerts. The appeal was accordingly allowed to the extent of setting aside paragraphs 2, 4 and 5 of the Tribunal’s Judgment and remitting the case to the same Tribunal to consider the application of the decision in Govaerts based upon such further evidence and submissions as may be necessary.
Citations:
[2021] UKEAT 0023 – 19 – 2502
Links:
Jurisdiction:
England and Wales
Employment
Updated: 30 November 2022; Ref: scu.661699