The contract that was the subject of Qlog Ltd v O'Brien related to the transportation of cardboard packaging goods on behalf of a client. The outgoing contractor engaged HGV drivers to work on the contract, along with employees who loaded the vehicles and a transport manager.
When the contract was retendered, the incoming contractor was what is known in the industry as a "fourth party logistics platform operation" – essentially a "middle man" who contracted with other haulage companies to make individual deliveries and collections on behalf of the client. By the time of the tribunal hearing it was using 30 different firms to deliver goods. As it did not make deliveries itself, it argued that there was no service provision change (SPC) TUPE transfer in respect of the HGV drivers; although it accepted that the loaders and the transport manager would transfer.
The EAT upheld the tribunal's decision that the activities that were performed before and after the transfer were fundamentally or essentially the same and that a TUPE transfer had taken place.
The tribunal had correctly taken into account the fact that the method of carrying out the activity in question before and after the change of contractor had changed but had also had regard to the contractual agreement between the client and the incoming contractor, which was described as a "transfer" of "its transportation, delivery and distribution services". The tribunal was entitled to conclude that the actual activity being provided remained the same.
Ultimately, whilst acknowledging that another tribunal might have reached a different conclusion on the facts, the EAT was reluctant to interfere with the decision reached.
This goes against a tendency in earlier cases to take a restrictive approach to what amounts to an SPC: in one case in 2012 the EAT found that when a centralised taxi booking service was de-centralised when it was taken back in house, the service was no longer essentially the same activity and there was no SPC. The decision is more in line with the original assumption when the SPC concept was introduced into TUPE in 2006 that most outsourcings would amount to TUPE transfers as long as the same activity was carried out before and after the change of contractor.