update on TUPE cases particuarly in relation to service provision changes.

1. Burness
Edinburgh Glasgow
TUPE Update
Presentation by Morag Hutchison
Employment Law Group Conference 2012
1 June 2012

2. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
(17%) (22%)
(5%)
SPC: Organised SPC: Identity of
ETO: Dismissal
grouping client
(17%)
(17%) (5%)
Change to terms Government
and conditions consultation
(8%) (9%)

3. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Activity
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Metropolitan • Accommodation for asylum seekers
Resources Limited v
Churchill Dulwich Ltd • Sufficient if activities “fundamentally or
(2008) essentially the same”
OCS Group UK Ltd v
Jones • Re-tendering of catering contract
• Activities “wholly different”
(2009)
Enterprise
Management Services • Provision of IT services
v Connect-Up Ltd • Significant differences in activities
(2010)

4. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Activity
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Argyll Coastal Services v Stirling & Others (2011)
Identify organised
Are employees
Identify activity grouping of
assigned
employees
Lady Smith: An organised grouping of employees must be a grouping deliberately put
together by the transferor to carry out the particular activities required.

5. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Activity
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Nottinghamshire
Healthcare NHS Trust • Closure of care home
v Hamshaw • Activities “fundamentally different”
(2011)
Johnson Controls Ltd
v Campbell • Taxi bookings taken back in house
• “Holistic assessment” required
(2012)

6. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Fragmentation
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Enterprise Management Systems v Connect-Up Ltd (2010)
Enterprise Managements Services
Contractor 1
…lost contract for
IT services to Contractor 2
Schools
Connect-Up
Ltd Contractor 4 Contractor 3
Where is it not possible to identify the destination of the activities because they do not
have a distinct identity there is unlikely to be a SPC.

7. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Organised Grouping
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Hunt v Storm • Employee in PR agency spent 70% of time on contract for a
Communications particular client
• Was an organised grouping of employees
(2006)
Royden and other v • Britannia Building Society branch mortgage referrals transferred
to different firm
Barnetts Solicitors • Organised group whose principal purpose was branch referrals
• Two out of six employees transferred
(2007)
Eddie Stobart Ltd v • Day shift and night shift warehouse staff
Moreman • Day shift worked principally on Vion contract
• Not organised grouping – spent time on Vion contract because of
shift pattern - no deliberate planning or intent
(2011)
Seawell Ltd v Ceva • Freight forwarding and management logistics
• “Inbound” and “outbound” goods teams – employee in outbound
Freight (UK) Ltd team and spent 100% of time working on Seawell account
• Not organised grouping – needs a deliberate putting together of
(2011) employees - not a matter of “happenstance”

8. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
SPC : Client
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Hunter v McCarrick (2010)
WG Ltd
WG Ltd
Aviva/Receivers
WG WCP King
Ltd Sturge
• TUPE only applies where activities carried out before and after the change of
contractor are carried out on behalf of the same client.
• No need to adopt purposive approach as SPC provisions do not originate from the
ARD.

9. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
ETO: Dismissal
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Meter U Ltd v Ackroyd (2011)
Franchise
Franchise
Customer/ Meter U Meter
Contractor Ltd Franchise
U Ltd
Franchise
Franchise
“Workforce” does not include franchisees so change in workforce and ETO reason for
dismissal

10. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
ETO: Dismissal
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
• Repudiatory breach
Resignation is of contract
dismissal
where... • Substantial change
to material detriment
Automatically • Change in numbers
unfair if no ETO
• Change in job
reason entailing
change in function
workforce

11. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
ETO: Dismissal
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Relocation: No change in numbers
Royden v Barnetts • Based in Birkenhead and offered role in Southport (22 miles)
Solicitors • CUD claim and “substantial change” claim
• Automatically unfair as no changes in the workforce
(2007)
Tapere v South London • Move from Camberwell to Beckenham (8 Miles)
and Maudsley NHS Trust • Impact of change to be considered from employee’s
perspective
(2008)
Abellio London Ltd v
Musse • Relocation of 6 miles was a substantial change
• Automatically unfair as no changes in the workforce
(2011)
• Could increase in numbers be a change in the workforce?
• Argue change in numbers and therefore workforce at original location?

12. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
ETO: Changing t&c’s
SPC:
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Enterprise Managed Services Smith v Trustees of
Ltd v Dance & others Brookland College
(2011) (2011)
• Changes after transfer to • Reduction in salary after
improve performance and transfer due to mistakenly
efficiency not connected paying full-time salary for
with the transfer part-time work not
connected with the transfer

13. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
Government Consultation
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Have changes Do transferors Is lack of ability to
provided greater comply with ELI harmonise a
clarity/transparency? obligation? significant burden?
More litigation/higher Point of TUPE to protect
impact on small & employees on point of entry
medium employers Provisions not helpful Allow if collective
Mirror collective agreement/ee reps with cooling
off period
consultation timescales
If parties agree RoE Employees not allowed to
could be allowed “cherry pick”
May see obligation to
provide earlier – at Change difficult due to
Unlikely that SPC tender stage? ARD
provisions will change Likely to see increase in May be some “tinkering”
information to be around the edges
provided

14. Burness
Edinburgh Glasgow
SPC:
The basics SPC: Activity
Fragmentation
SPC:
Government Consultation
SPC: Identity ETO:
Organised
of client Dismissal
grouping
Change to
Government
terms and
consultation
conditions
Would additional Interaction between
Should professional
guidance on an TUPE and
services be
ETO reason be redundancy
excluded?
helpful? consultation
Difficulty will be Helpful if clarification Practical issue :
defining who is in relocation that cannot commence
covered by reduction at a redundancy
professional particular place is consultation until
services change in numbers after transfer
Government Possible amendment to allow
revisiting transferee to attend pre-
May see some change transfer consultation meeting
May remove from to deal with relocation May allow “30/90” day
SPC but not issue clock to start before transfer
business transfer

15. Burness
Edinburgh Glasgow
Q A

16. Burness
Edinburgh Glasgow
Morag Hutchison +44 131 473 6029 morag.hutchison@burness.co.uk
@BurnessEmplaw @MoragHutchison