In Argyll Coastal Services Ltd v Stirling and Others, the EAT has provided helpful guidance on the application of TUPE to service provision changes.
This case involved the loss of a contract through a re-tendering process for a ship and crew chartered by the MOD to deliver cargo to the Falklands.
Although the EAT’s guidance is non-binding, it sets out a useful structured approach for assessing whether there has been a service provision change:
- was there an organised grouping of employees? This phrase implies a grouping which is less than the transferor’s whole workforce, deliberately organised and working together as a team;
- did that grouping have as its principal (and not necessarily sole) purpose the carrying out of the relevant activities?
- ‘relevant activities’ should be assessed by looking at what service the client contracted for, and then examining precisely what activities were in fact undertaken;
- Was the claimant assigned to that organised grouping?
The EAT also held that an organised grouping of employees cannot be made up of employees who have different employers.