TUPE

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.

Where a security contractor has been engaged for a company on  land owned by a Borough, when the Borough take back the site and engage a new security company to look after the site pending its demolition, does a service provision change TUPE transfer under Reg 3 (1) (b) of TUPE apply?

No, for two reasons, held the EAT in Horizon Security Services Limited v (1) Ndeze (2) The PCS Group.

In this case, PCS, a security contractor, had been engaged to provide security services for Workspace Plc which was looking after a business centre on a site owned by the London Borough of Waltham Forest. Then the site was taken back by the London Borough of Waltham Forest who engaged a new security company, Horizon, specifically to look after the site for a limited period of 8 to 9 months pending demolition of the building for the purposes of allowing a supermarket to be erected. Employees working for PCS claimed there was a service provision change and that they should be engaged by Horizon.

But a fundamental rule in relation to service provision change is that the client for whom the services are provided must be the same. This rule derives from the Court of Appeal case of Hunter v McCarrick [2013] IRLR 26. Here, the client had changed. PCS was working for Workspace Plc and Horizon was working for London Borough of Waltham Forest, which was a different legal entity. The service provision change rules did not apply and the employees were not entitled to transfer to Horizon.

The second point in the case is that service provision change TUPE transfers cannot occur where the client intends the contract to relate to an event or task of short term duration. The contract that had been given to Horizon was of limited duration, simply to look after the site pending its demolition. This was therefore a task of short term duration and for this second reason there was no service provision change.