[Thanks to James Medhurst of Employment Law Advocates for providing this case summary]
The EAT (HHJ McMullen) has handed down its decision in Ward Hadaway Solicitors v Capsticks Solicitors, which is authority for the proposition that, for the purposes of paragraph 3(1)(b) of the TUPE Regulations 2006, the question of whether the contracting out of activities constitutes a service provision change is a matter of law but the identification of the activities themselves is a question of fact and, therefore, the decision of a tribunal cannot be overturned on appeal unless it is perverse.
In this case, Ward Hadaway had been a member of a panel who provided legal services to the Nursing and Midwifery Council. There was no obligation for the NMC to allocate any work and no obligation for Ward Hadaway to accept it. The NMC decided to tender out its work to a single provider, Capsticks, but Ward Hadaway continued to carry out the work already allocated to it. Most future work of a similar nature was to be taken in-house. The Tribunal was entitled to find that only the work in progress, rather than the expectation of future work, was an activity and that, in any event, there was a change in the nature of the work carried out.