McCarthy Haulage Ltd had a contract with Ribble Ltd to carry out
transport and delivery services. McCarthy employed drivers to carry out
those deliveries. McCarthy also employed a transport manager and four
shunters, who were responsible for managing the deliveries. The contract
ended on 17 September 2011.
The new provider (Qlog Ltd) started on 19 September 2011. The transport
manager and the shunters transferred to Qlog. However Qlog denied that
TUPE applied to the drivers on the basis that Qlog would not be
providing the transport services - as they would be sub-contracted to
individual haulage providers.
The tribunal considered that the interpretation of "activities" was
critical for determining whether there was a service provision change.
In doing so, the tribunal considered the written agreement between
Ribble and Qlog which stated that "[Ribble] wishes to transfer the
provision for part of its transportation, delivery and distribution
services from its incumbent provider to [Qlog]."
Relying on this agreement between the parties as compelling evidence of
their intentions, the tribunal found that the "activities" which were
carried out were principally the transportation of goods. The tribunal
found that, whilst the mode of carrying out that activity post-transfer
was very different, the actual activity which Qlog had agreed to provide
was the same.
Qlog appealed the decision, challenging the Tribunal's approach to the
identification of a service provision change for the purposes of reg
The EAT rejected the appeal. In making its decision, the EAT applied the case of Johnson Controls v UK Atomic Energy Authority,
and held that the identification of the "activities" undertaken before
and after the provision change was a matter of fact and degree for the
Therefore, the EAT held that the tribunal had been entitled, when
characterising the "activities" undertaken by Qlog, to have regard to
the way in which these were set out in the contractual documentation
between the parties.
This archive contains Daniel Barnett's employment law email bulletins which are posted when an email bulletin is sent out. To receive these bulletins by email you can subscribe for free.
Over 28,000 people, including solicitors, barristers, HR professionals and employment tribunal judges, receive these bulletins.
Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.