metro_churchillEAT2009
EAT TRANSFER OF UNDERTAKINGS: Transfer
Migrant Helpline, on behalf of the Home Office; had a contract with Churchill Dulwich Ltd – in Liquidation (‘CD’) by which CD provided accommodation to asylum seekers. Before that contract expired the Migrant Helpline entered into a replacement contract with Metropolitan Resources Centre Ltd (‘MRL) for such provision at a different location; CD received no more asylum seekers and had only a small number of asylum seekers who because of ill-health could not be moved on immediately; all other asylum seekers were from 26.1.07 allocated to MRL. When CD’s contract expired on 02.4.07 CD’s employees claimed that there had been a transfer to MRL of their employment under Reg 3(1)(b) of TUPE 2006 i.e. a service provision change. The Employment Tribunal on a preliminary issue held that there had been such a transfer.
Held (1) that the approach in Cheeseman did not apply to the question – Was there a service provision charge; the concept of service provision change is a new statutory concept
(2) in considering that question the Employment Tribunal had to consider whether the service provided after the change was fundamentally or essentially the same as that provided before the change
(3) the answer to that was a matter of fact.
(4) The fact that the transfer did not wholly take place on one day, that the employees did not leave CD on the date identified as the date of transfer and that the providers used different locations were not individually or collectively fatal to the existence of a service provision charge; the Employment Tribunal had considered these matters in reaching its factual conclusion.
(5) The Tribunal had correctly directed themselves and reached a factual conclusion which was open to them.
HH J Burke QC said: ‘Service provision change’ is a wholly new statutory concept. It is not defined in terms of economic entity or of other concepts which have developed under the 1981 Regulations or by Community decisions on the Acquired Rights Directive prior to April 2006 when the new Regulations took effect. The circumstances in which service provision change is established are, in my judgment, comprehensively and clearly set out in regulation 3(1)(b) itself and regulation 3(3); if there was, immediately before the change relied upon, an organised grouping of employees which had as its principal purpose the carrying out of the activities in question, the client intends that those activities will be carried out by the alleged transferee, other than in connection with a single specific event or a task of short term duration, and the activities do not consist totally or mainly of the supply of goods for the client’s use, and if those activities cease to be carried out by the alleged transferor and are carried out instead by the alleged transferee, a relevant transfer exists. In contrast to the words used to define transfer in the 1981 Regulations the new provisions appear to be straightforward; and their application to an individual case is, in my judgment, essentially one of fact. . . The statutory words require the employment tribunal to concentrate upon the relevant activities; and tribunals will inevitably be faced, as in this case, with arguments that the activities carried on by the alleged transferee are not identical to the activities carried on by the alleged transferor because there are detailed differences between what the former does and what the latter did or in the manner in which the former performs and the latter performed the relevant tasks. However, it cannot, in my judgment, have been the intention of the introduction of the new concept of service provision change that that concept should not apply because of some minor difference or differences between the nature of the tasks carried on after what is said to have been a service provision change as compared with before it or in the way in which they are performed as compared with the nature or mode of performance of those tasks in the hands of the alleged transferor. A common sense and pragmatic approach is required to enable a case in which problems of this nature arise to be appropriately decided, as was adopted by the tribunal in the present case. The tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor. The answer to that question will be one of fact and degree, to be assessed by the tribunal on the evidence in the individual case before it.’
Burke QC J
[2009] UKEAT 0286 – 08 – 2406, [2009] ICR 1380, [2009] IRLR 700
Bailii
Citing:
Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Cited by:
Cited – Qlog Ltd v O’Brien and Others EAT 21-Mar-2014
EAT Transfer of Undertakings : The approach to be adopted by an Employment Tribunal to the identification of a transfer by way of service provision change for the purposes of reg. 3(1)(b) Transfer of Undertakings . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 November 2021; Ref: scu.347188