A service provision change transfer occurs where there is an organised grouping of employees whose principal purpose is to carry out activities on behalf of a client, who intends that fundamentally the same activities will in the future be carried out by another service provider or by itself. The EAT has recently considered whether activities were fundamentally the same when the new service provider replaced a manual method with an electronic one.

The employee, L, worked for MLCSL classifying meat carcasses in an abattoir owned and operated by ABP UK. There was an agreement between ABP UK and MLCSL for the processing and classification of meat carcasses. The classification process was semi-manual: each carcass underwent video image analysis, but ultimately it was up to L to manually classify the carcass according to agreed criteria and customer specifications. ABP UK gave notice to MLCSL to terminate their service provision agreement on the basis that it intended to begin electronic classification of the carcasses. L argued that his employment had automatically TUPE transferred to ABP UK because their decision to carry out electronic classification of carcasses meant that the activity he had been assigned to had been transferred back in-house. ABP UK did not accept that TUPE applied to transfer L's employment.

The main issue for the employment tribunal hearing L's claim was whether the carcass classification activities were fundamentally the same after the introduction of electronic classification methods. The tribunal found that they were. ABP UK appealed, arguing that the main part (amounting to more than 75%) of L's job would be undertaken by electronic technology post-transfer, that L had conceded as much in evidence, and that the tribunal had failed to properly consider whether the activities were fundamentally the same when a semi-manual method was replaced with an electronic one.

The EAT rejected that appeal. The EAT held that the tribunal judge's notes of evidence did not support the contention that L had conceded that there would be a complete change in the level of activity under the new electronic classification system. The EAT held that the tribunal had not erred in its analysis; it had analysed the pre- and post- transfer activities fully and properly and in a suitably pragmatic manner.

Comment: If the amount of work available to L after the classification of meat carcasses was transferred back in-house had reduced to 25% because of the introduction of electronic classification methods, then arguably the correct approach would have been for ABP UK Ltd to accept that L had transferred and commence a redundancy exercise on the basis that it had a reduced need for employees to perform the classification of meat carcasses.

Anglo Beef Processors UK -v- Longland and ors [2016] UKEAT 0025_15_0712