We reported in July on Metropolitan Resources v Churchill Dulwich and others, the first reported decision of the EAT on a TUPE transfer where there is a ‘service provision change’ rather than a transfer of an undertaking. In that case, the EAT had no difficulty in deciding that a TUPE transfer had taken place.
However, in their second reported case, OCS v Jones & Ciliza, the EAT has decided, on the facts, that TUPE did not apply.
The EAT noted that the TUPE regulations state that one of the three occasions on which a service provision change may occur for TUPE purposes is when ‘activities cease to be carried out by a contractor... and are carried out by... a subsequent contractor on the client’s behalf’. The EAT accepts that, for the purposes of TUPE reg.3 (1)(b)(ii), those activities need not be carried out the same way after the transfer for TUPE to apply.
However where, as in this case, the transfer of the catering contract at the BMW car plant in Cowley meant that a full service canteen providing hot food was replaced by a kiosk selling sandwiches, the EAT says that the employment tribunal was right to say that there was a 'material difference' in the activities which was more than a mere ‘service provision change’ and this meant that there was no TUPE transfer.
Point to note -
- As always, this TUPE case was decided on the basis of its specific facts. It seems to have been very important to the employment tribunal that the claimants were trained chefs who were being asked to do a completely different job post-transfer. Please consult us for more specialist advice on the extent to which the TUPE regulations may, or may not, apply to any proposed business changes.