Carillion carried out routine, low value heating and boiler services for Cornwall Council. Under a "Framework Agreement" it could also be asked to carry out "project work" – higher value or larger scale emergency repairs, but there was no obligation on the Council to ask Carillion to carry out that work and no obligation on Carillion to accept work that was offered.
Carillion lost the contract to Lorne Stewart. The contract entered into between Lorne Stewart and the Council was on very similar terms to the Framework Agreement. It was accepted that staff employed on the routine services should transfer under the TUPE service provision change regulations; the question was whether two employees engaged on project work should also transfer, given that there was no obligation on Carillion to carry out that work and no specific work was underway at the time the contract transferred.
The EAT upheld the Tribunal's conclusion that the conditions for a service provision change were satisfied and the two employees should transfer to Lorne Stewart. It was accepted that, as required by the TUPE regulations, there was an "organised grouping of employees having as its principal purpose the carrying out of those activities" and that the two employees were assigned to it. The only issue was whether the lack of any contractual commitment was relevant. The EAT said not – the focus must be on what was actually happening "on the ground". All that mattered was that the work carried out by the employees on behalf of Carillion was the same sort of work that it was envisaged would be provided by Lorne Stewart in the future.