Chester 01244 405555

Grosvenor Court
Foregate Street Chester
Cheshire CH1 1HG
DX: 19990 Chester

Shrewsbury 01743 443 043

Lakeside House
Oxon Business Park
Shrewsbury SY3 5HJ
DX: 148563 Shrewsbury 14

Manchester 0844 800 8346

Pall Mall Court
61-67 King Street
Manchester M2 4PD

Send us a message
Our Offices

TUPE: Are the Activities Fundamentally the Same?

17th January, 2017

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applies if there is a ‘relevant transfer’ or where there is a ‘service provision change’.

A service provision change can include where activities are no longer carried out by a contractor and are carried out by a subsequent contractor instead. When considering this, the key question is whether the activities that were carried out by the first contractor are fundamentally the same as the activities carried out by the subsequent contractor. The activities must be fundamentally the same for TUPE to apply.

The case of Salvation Army Trustee Company v Bahi and others UKEAT/0120/16 recently considered this question.

Coventry City Council (the Council) provided services to homeless people and had contracts with a number of service providers to enable them to do this. One of the service providers was the charity, Coventry Cyrenians  Ltd (CCL). They had two contracts with the Council to provide accommodation based support. They provided accommodation for service users over the age of 18. CCL assessed prospective service users and allocated a support worker to assist them while they lived in the accommodation if they were accepted. The support workers were available between 9.00am and 5.00pm and helped with such things as benefits, form filling, addressing issues such as drug and alcohol misuse and help with accessing education/work.

Service users could stay in the accommodation for up to two years but the maximum stay would usually be 12 months. Once the service users had moved, they were provided with ‘floating support’.

The Council decided it wanted to replace its numerous contracts with a single contract. As such, the Salvation Army Trust Company (SAT) entered into a contract with the Council.

SAT provided accommodation to all service users over the age of 25. The service users would be found private accommodation and provided with floating support immediately if appropriate. If not, they would go to an assessment unit and a support care plan would be put in place before they were provided with supported accommodation for up to 112 days. The hostels were staffed overnight and support workers were available between 7.00am and 7.00pm.

CCL and the claimants claimed that there had been a TUPE transfer and the circumstances amount to a service provision change.

At tribunal, the Employment Judge found that the activities before the change in contractor had been the provision of accommodation based support for homeless men and women and the availability of support workers. It was found that this service remained fundamentally the same following the change of service provider and therefore, TUPE applied.

SAT appealed this decision but the appeal was dismissed by the Employment Appeal Tribunal.

If you are unsure whether there is a ‘relevant transfer’ or if there is a service provision change, and, therefore, are unsure whether TUPE applies, contact our Employment department immediately for specialist advice and to avoid potentially breaching the TUPE Regulations and all relevant legislation.

Ben Mason

Associate

Employment Law
Email: [email protected]
Tel: 01743 294129

You might also be interested in...

Legal expert’s data protection workshops pull in the crowds

22nd May, 2018

With the General Data Protection Regulation (GDPR) coming into force in May, businesses across Shropshire have been flocking to hear more about the new laws Paul Bennett, a partner at law firm Aaron & Partners LLP, has been delivering seminars in partnership with the Shropshire Chamber of Commerce An employment solicitor from Shrewsbury is urging businesses across the... Read More »

Experienced HR leader joins Aaron & Partners LLP

15th May, 2018

Experienced HR leader joins Aaron & Partners LLP Law firm with offices in Chester and Shrewsbury appoints Kate Robertson to drive HR strategy for more than 120 staff and to support the company’s growth Chester law firm Aaron & Partners LLP has strengthened its senior leadership team with the appointment of an experienced human resources manager. Kate Robertson... Read More »

When you should NOT pay the bailiff…

24th April, 2018

Jan Chillery, Insolvency Partner at Aaron & Partners LLP, shares her experience and the reasons why we should be cautious before paying so-called “bailiffs” over the phone or online without vetting them first. My neighbour has told me that recently he had a CCJ (County Court Judgment) against him. A day or so later, he received a phone call... Read More »

Contact Us