CT Plus (Yorkshire) CIC v Black & Ors UKEAT/0035/16/DM
This case highlights the need for continuity of "the client" to trigger a TUPE transfer in the context of a change in service provider.
CT Plus Ltd ("CT") operated a park-and-ride car park, which ran between the outskirts and the centre of Hull. The Council subsidised the operation this service, by virtue of a direct contractual relationship with CT. Stagecoach subsequently decided that it could run the service commercially without a subsidy. CT's subsidised service was not permitted to continue in competition with Stagecoach's commercial venture, therefore CT stopped operating the park-and-ride car park. Stagecoach did not take on CT's drivers, nor did it use CT's buses.
The CT drivers claimed to transfer to Stagecoach by operation of TUPE's service provision change rules, arguing that Stagecoach had simply carried on the same activities as CT on behalf of the Council.
However, the ET and the EAT both found that the circumstances did not amount to a TUPE transfer because the activities in question were not carried out "on the client's behalf". When Stagecoach took over the park-and-ride service, the activities were no longer being carried out on the Council's behalf. The Council was therefore no more than an interested bystander and therefore TUPE was not triggered.
We often find that clients have not appreciated this subtlety in TUPE, which is an integral element to determining whether or not employees should be transferred following a service provision change. Where a service is being offered on behalf of a third party, employers should consider carefully whether that third party is the same before and after the change.