Employment Appeal Tribunal
Migrant Helpline therefore entered into a contract with Metropolitan Resources Ltd whereby the latter would begin providing asylum accommodation and related support services from 26 January 2007. From that date, all asylum seekers who would previously have been allocated to the transferor, were allocated to Metropolitan Resources Ltd, which provided accommodation for them at a different location, considered to be more secure and at which some additional services were provided.
Further, rather than assign or terminate its contract with the transferor, Migrant Helpline decided simply to allow that contract to run its course until 31 March 2007 and then to lapse. Some longer-term asylum seekers remained with the transferor for a number of weeks until alternative accommodation could be found for them and they were gradually dispersed. The claimants also continued to work for the transferor until 31 March 2007.
The Employment Judge (sitting alone) found that there had been a service provision change pursuant to TUPE 2006, reg. 3(1)(b)(ii), which took place on 26 January 2007, at which date the essential service or activity transferred from Churchill Dulwich Ltd to Metropolitan Resource Ltd.
(1) A ‘service provision change’ under TUPE 2006, reg. 3(1)(b) is a wholly new statutory concept which does not derive from the Acquired Rights Directive (2001/23/EC), but from section 38 of the Employment Relations Act 1999. Its purpose is to remove (or at least alleviate) the uncertainties and difficulties which arise in relation to the question of whether there has been a traditional TUPE transfer in the circumstances of a service provision change, particularly where the operation is labour–intensive (paragraphs 11, 26-27).
(2) The statutory provisions themselves contain sufficient definition of the requirements for a service provision change to be established and should be applied, unadorned by any judicial gloss. In particular, there is no need for a judicially prescribed ‘multi-factoral’ approach of the kind applied in Cheesman (paragraphs 27-28, 34).
(3) The tribunal should, therefore, concentrate upon the activities and ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor. Minor differences or differences between the nature of the tasks carried on before and after the alleged service provision change should not negate a finding that there has been a service provision change. In this case, the differences were not sufficient to negate that finding (paragraphs 30, 37).
EMPLOYMENT, SERVICE PROVISION, TRANSFER OF UNDERTAKINGS.
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