[Thanks to Ed McFarlane of EEF for providing this case summary]
The EAT has considered, in Metropolitan Resources v Martin Cambridge , the correct approach for establishing whether or not a service provision change falls withinTUPE 2006. A contractor took over the provision of services to asylum seekers, providing services in a new way at a new site.
The EAT held that regulation 3(1)(b), which defines a 'service provision change', has broad scope, the key issue being one of fact as to whether or not any of the conditions in 3(1)(b)(i) to (iii) are met.
A "…commonsense and pragmatic approach is required…". The fundamental question for a tribunal is "…whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor…". (para 30.). There is "…no call for a formal list of factors which the Tribunal must consider before it can make a decision…" (para.34) unlike the multi-factorial Cheeseman approach under Reg 3(1)(a).
According to the EAT, "Where one contractor ceases and another commences service provision with differences in time,manner and/or place, there can still be an SPC under TUPE" (para. 37). Thus the sands of time will not save contractors from the quicksands of TUPE.