In order for there to be a service provision change TUPE transfer under regulation 3(1)(b) of TUPE the activities taken over by the new provider must remain "fundamentally the same" as before the transfer. The EAT has recently stressed that a common sense and pragmatic approach must be taken to the meaning of the word "activities", and its decision in Anglo Beef Processors UK v Longland UKEATS/0025/15/JW is the latest example of this.
Mr Longland was employed by Meat & Livestock Commercial Services Limited as a carcase service officer. This meant classifying carcases in an abattoir. His employer provided these services to Anglo Beef Processors UK under a commercial services agreement. Mr Longland's duties involved identifying and weighing carcases, recording information, marking carcases and making sure they were classified properly in accordance with statutory regulations. Although this involved manual classification his employer had used a VIA (video imaging analysis) machine for some time. This enabled Mr Longland to carry out some of his duties with the assistance of the VIA machine although it was not fully using computer software analysis at this time. In 2014 Anglo Beef informed MLCSL that it would be moving over to full electronic classification of carcases and would be terminating its agreement with MLCSL accordingly. In other words it took the service back in house.
Anglo Beef now intended to make the assessment of carcases using the computerised assessment which the VIA machine was capable of producing. However some manual input was still necessary. The machines still needed calibrating every morning. A physical check was also necessary. Other aspects of the operation also required a person or persons to be present. If, for example, the machine missed a carcase then a qualified person would be called on to manually classify the carcase.
The question was whether Mr Longland should transfer to Anglo Beef under TUPE which the latter disputed. The employment tribunal however concluded that the activity which Anglo Beef had taken over involved, essentially, classifying carcases, whether manually or electronically. The activity had been carried out by having two employees present at the processing line prior to the transfer and this practice was continued after the termination of MLCSL's contract. Furthermore the necessary BCC licence which Mr Longland held for the purposes of manual classification was required by at least one employee on the premises where electronic classification was being carried out. After the transfer a BCC qualified grader continued to be present on the line. The employment tribunal concluded that: "there was really very little room for doubt that the activities carried out by [Anglo Beef] after the transfer were fundamentally the same as that carried out by [MLCSL]".
Anglo Beef had also relied on the decision of the EAT in Department for Education v Huke UKEAT/0080/12. In that case the EAT decided that a tribunal ought to consider, in deciding whether "activities remained the same, not only the character and type of activities carried out but also the quantity, particularly where the contract post transfer involved a substantially reduced service. In such a situation TUPE might not apply. However the ET in Anglo Beef considered that the issue in Huke was that the claimant employee in that case was only carrying out the activities which transferred to the putative transferee for around 45% of his time prior to the transfer. The real issue in Huke was that there was really no activity to be transferred since there had prior to the transfer been a considerable downturn in work and long prior to the insourcing there had been little or no work on the activities insourced for the employee to do. But here the situation was different. There was no reduction in quantity as far as the activities previously carried out by Mr Longland were concerned. The ET made a specific finding that the processing of carcases continued as before with the same throughput rate of around 40 to 45 carcases per hour.
The EAT held that the ET was entitled to make these findings and adopted its reasoning. In short, there was a service provision change TUPE transfer and Anglo Beef's appeal was dismissed.
For more in-depth practical guidance on TUPE issues such as this please note our practical TUPE training days in conjunction with ACASon August 9 2017 in Hull, and 6 September 2017 in York.