TUPE: Meaning of 'client' re service provision changeover

Thanks to James English of Hempsons solicitors for preparing this case summary

If a party contracts out a service, which is then subcontracted, can it be the 'client' for the purposes of a TUPE claim?

Yes, held the EAT in Jinks v London Borough of Havering.

The Council contracted with Saturn to operate an ice rink and car park. Saturn sub-contracted the car park to Regal. Regal's subcontract ended when Saturn gave up the car park, the Council passing it on to a local NHS Trust. The Claimant claimed that his employment transferred from Regal to the Council.

The employment tribunal struck out the claim as having no real prospect of success. A service provision change includes a situation where activities cease to be carried out by a contractor on a client's behalf, and are carried out instead by the client on his own behalf; Reg.3(1)(iii) of TUPE. There was no TUPE transfer here. The client must be the same both before and after the transfer. Saturn was Regal's client, not the Council. There was no contractual relationship between the Council and Regal.

The EAT disagreed. The question was: who was Regal running the car park on behalf of? Who is the client is a question of fact, not law, and there can be more than one client in any given case. A strict legal or contractual relationship was not essential; Horizon Security Services v Ndeze. Further, 'contractor' includes 'sub-contractor'; Reg 2(1) of TUPE. The EAT remitted the application back to an employment tribunal for reconsideration.