[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during his absence, and to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
For there to be a service provision change under Reg 3 (1) (b) of TUPE, must the activities carried out by different providers before and after the transfer be carried out for the same client? Yes, says the EAT in Hunter v McCarrick.
In this case the claimant was employed by a provider of property services. The company which owned the properties became the subject of a winding up petition. The lender on the properties appointed Law of Property Act Receivers who assumed control of the properties thereafter and appointed a new property services company. It was held there could be no service provision change when not only was there a change in contractors, but also of the client.
Reg 3(1) (b) (ii) provides that an SPC arises where activities cease to be carried out on a client's behalf and are instead carried by a subsequent contractor on the client's behalf. That had to be read as meaning the same client. As a service provision change under Reg (3) (1) (b) is a wholly new statutory concept independent of the Acquired Rights Directive there was no warrant for adopting an interpretation of it other than that required by the ordinary meaning of the language used.
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1 comment:
Dear Daniel,
I have read the judgment in this matter and confess to remaining a little confused as to the true impact of this authority.
Is this to say that in the event of a traditional business transfer, service providers engaged by the Transferor (T'or) to perform outsourced services, have no rights under TUPE as against the Transferee (T'ee) or any subsequent provider of those services to the T'ee, even where the services outsourced by the T'ee are identical?
i.e.
T'or outsources its security requirements to X, following sale of the T'or's business to T'ee, T'ee appoints a new contractor to provide identical security services, however there shall be no SPC as between X and the T'ee/new service provider as there has been a change in the identity of the client (from T'or to T'ee).
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