A relevant transfer can take place under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) when there is a service provision change. The EAT has held that whether a service provision change has occurred for the purposes of TUPE, is a question of fact for an employment tribunal.
- A tribunal, when faced with deciding whether a service provision change has in fact taken place, should consider whether the activities carried out by the (alleged) transferee are 'fundamentally or essentially the same as' those carried out by the (alleged) transferor.
- In reaching its conclusion, a tribunal should identify the relevant activities carried out by both parties before finding whether they are fundamentally or essentially the same.
- The tribunal should take into account all of the minor differences in the way both the alleged transferor and alleged transferee carry out their activities and decide, as a question of fact, whether these differences are enough to prevent them from being fundamentally or essentially the same.
Metropolitan Resources Limited v Churchill Dulwich Limited and ors