Clearsprings Management Ltd v Ankers and Angel Services UK Ltd UKEAT/0054/08

The facts of the second case, Clearsprings, were as follows. Clearsprings Management Ltd provided accommodation and support services to asylum seekers in North West England under a contract with the Home Offi ce. In February 2006, new contracts were awarded to the provision of the services in the North West to three new contractors. A transitional period commenced in March, during which the new contractors each accommodated (on a random basis) asylum seekers at properties provided by the contractors as part of the services. The question arose whether there had been a transfer under TUPE 2006 from Clearsprings to one or more of the new contractors.

The Tribunal held that the relevant activity was the provision of accommodation and care to asylum seekers. Where no single transferee could be identifi ed as having taken over the activity the TUPE 2006 regulations could still apply however in this case it was not possible to indentify the relevant transferee employer(s). Also the fact that no potential fi xed “transfer date” could be identifi ed, indicated that the relevant activity have become so fragmented as to be outside the scope of the regulations.

Once again, as in the OCS case, the question of whether or not there has been a service provision change focused (as result of the drafting of TUPE 2006) on the activities performed by the two employers before and after the disputed transfer. The purpose of the underlying EU directive is to protect employment rights. One could question whether, when drafting the TUPE 2006 regulations, there was any intention to narrow the scope of the regulations by removing individuals’ employment rights simply because it was diffi cult to identify the transfer date or the division of staff between a number of transferees.