There is not a simple answer to this as was discovered by Mrs Jones and Miss Ciliza. They brought a case against the transferee of a catering contract claiming that the TUPE Regs applied.
In this particular case a catering contract had been transferred because the old contract was losing money. The old service was described as a full canteen service involving the Claimants cooking as well as service. The transferee changed the service from being canteen based to being kiosk based with the Claimants simply selling pre-made sandwiches with some service. The question of course arose as to whether the same ‘activities’ were carried out by the new contractor?
The EAT upheld the Tribunals decision that there was no transfer and carried out a useful review of the service change provisions. The emphasis was as one might expect upon the activities not the fact that a grouping of employees has transferred.
This was decided relatively recently by HHJ Burke in Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08:
“The issue before the Tribunal can be simply expressed, namely, was there a relevant transfer under regulation 3(1) (b) of TUPE 2006. In the circumstances of this case two questions arose, namely were there activities which ceased to be carried out by CD on behalf of a client (MH) which were carried out instead by a subsequent contractor (MRL) on behalf of MH and were the conditions referred to in regulation 3(3) satisfied?”
The question then is simply a matter of fact for the Tribunal as to what similarities there are between the two activities; the important task for a Tribunal being a before and after snap shot of the activity in question.
It was also clear that simply labelling an activity in this case as ‘catering’ was not good enough. A more detailed analysis was required of the pre and post transfer activities. In this particular case the service had gone from being a full canteen service to a sales service of pre-packed foods which the Tribunal found was a wholly different operation.
What does this tell us? It helps us with how we should approach the service transfer provisions but is also demonstrates that there are limits to what is a ‘service’. Generalised labelling will not be sufficient for a service activity to survive a transfer. Tribunals will be looking at the specifics.
Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08
http://www.employmentappeals.gov.uk/Public/Upload/08_0286rjfhwwRN.doc
OCS GROUP UK LTD v JONES & CILIZA [2009] UKEAT/0038/09
http://www.employmentappeals.gov.uk/Public/Upload/09_0038fhwwCEA.doc
In this particular case a catering contract had been transferred because the old contract was losing money. The old service was described as a full canteen service involving the Claimants cooking as well as service. The transferee changed the service from being canteen based to being kiosk based with the Claimants simply selling pre-made sandwiches with some service. The question of course arose as to whether the same ‘activities’ were carried out by the new contractor?
The EAT upheld the Tribunals decision that there was no transfer and carried out a useful review of the service change provisions. The emphasis was as one might expect upon the activities not the fact that a grouping of employees has transferred.
This was decided relatively recently by HHJ Burke in Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08:
“The issue before the Tribunal can be simply expressed, namely, was there a relevant transfer under regulation 3(1) (b) of TUPE 2006. In the circumstances of this case two questions arose, namely were there activities which ceased to be carried out by CD on behalf of a client (MH) which were carried out instead by a subsequent contractor (MRL) on behalf of MH and were the conditions referred to in regulation 3(3) satisfied?”
The question then is simply a matter of fact for the Tribunal as to what similarities there are between the two activities; the important task for a Tribunal being a before and after snap shot of the activity in question.
It was also clear that simply labelling an activity in this case as ‘catering’ was not good enough. A more detailed analysis was required of the pre and post transfer activities. In this particular case the service had gone from being a full canteen service to a sales service of pre-packed foods which the Tribunal found was a wholly different operation.
What does this tell us? It helps us with how we should approach the service transfer provisions but is also demonstrates that there are limits to what is a ‘service’. Generalised labelling will not be sufficient for a service activity to survive a transfer. Tribunals will be looking at the specifics.
Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08
http://www.employmentappeals.gov.uk/Public/Upload/08_0286rjfhwwRN.doc
OCS GROUP UK LTD v JONES & CILIZA [2009] UKEAT/0038/09
http://www.employmentappeals.gov.uk/Public/Upload/09_0038fhwwCEA.doc
Peter D
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