There has been another EAT case on the TUPE outsourcing provisions - SNR Denton v Kirwan looks at the requirement that, for there to be a TUPE transfer in the form of a "service provision change" (SPC), the identity of the client must remain consistent before and after a change of contractors. We discussed this point in July when reporting Taurus Group Ltd v Crofts.
In this latest case, the claimant, who was arguing that there had been an SPC, was an in-house lawyer for a company, JAS, and for the last four years had worked almost entirely on disposing of facilities management contracts. JAS was placed in administration and the administrators appointed legal advisors. The in-house lawyer was dismissed and the law firm continued her work of disposing of the contracts.
She claimed that she should have transferred to the law firm, because they carried on the work she had been doing. (The SPC provisions can of course apply where there is a single employee.) The EAT agreed that the fact that the claimant had been acting in the interests of the company, whereas the administrators were acting for the creditors, did not matter because the nature of the activities themselves (contract disposal) had remained the same. But the EAT went on to find that there was no SPC because the "client" on behalf of whom the law firm carried out contract disposal was not JAS but the administrators. The identity of the "client" had therefore changed, so there could not be an SPC.
However, the EAT was at pains to emphasise that it was not laying down a rule that there will never be a transfer when an administrator engages a professional adviser. But on the facts of this particular case the claimant had been unable to establish that the identity of the "client" before and after the SPC was one and the same.