{"id":832,"date":"2015-06-12T10:52:02","date_gmt":"2015-06-12T10:52:02","guid":{"rendered":"http:\/\/www.tayloremmet.co.uk\/blogsite\/?p=832"},"modified":"2015-06-12T10:52:02","modified_gmt":"2015-06-12T10:52:02","slug":"latest-developments-in-tupe","status":"publish","type":"post","link":"https:\/\/www.tayloremmet.co.uk\/blogs\/latest-developments-in-tupe\/","title":{"rendered":"Latest developments in TUPE"},"content":{"rendered":"

\"\"<\/a>The last few months have seen some interesting cases as the law in relation to TUPE, and in particular service provision changes, continues to develop.<\/p>\n

Hot off the press is the case of Jinks v London Borough of Havering<\/span><\/em> where the EAT considered \u00a0how TUPE applies to service provision changes involving a subcontractor.<\/p>\n

The London Borough of Havering (the Council) owns a site comprising of an ice rink and a car park. The Council contracted out the management of the site to Saturn Leisure Ltd (Saturn). Saturn subsequently subcontracted the management of the car park to Regal Car Parks Ltd (Regal). In mid April 2013 the ice rink closed. The car park remained open for a few weeks but Saturn gave up occupation of the whole site at the end of April 2013. The Council granted a license to an NHS Trust to use the car park for a few months and then converted it into a public car park, taking over its management internally.<\/p>\n

The Claimant was originally employed by Saturn and transferred under TUPE to Regal when Saturn subcontracted the management of the car park to Regal. He then claimed that his employment transferred under TUPE to the Council when they took the management of the car park back inhouse. When the Council refused to accept he was an employee, the Claimant brought a claim for constructive unfair dismissal.<\/p>\n

The Tribunal struck out the Claimant’s claim at a preliminary hearing on the basis that a service provision change can only include a situation where activities \u201ccease to be carried out by a contractor<\/span> on a client\u2019s behalf, and are carried our instead by the client on his own behalf\u201d. The Tribunal Judge said TUPE did not apply here as the client must be the same both before and after the transfer. Here, Saturn had been Regal\u2019s client and not the Council. Therefore there was no contractual relationship between the Council and Regal.<\/p>\n

However the EAT disagreed with this approach; it instead focused on who was the ultimate client of Regal- was it the Council? \u00a0The EAT noted that TUPE widens the meaning of \u201ccontractor\u201d so it can be treated as including the word \u201csub-contractor\u201d. This meant a service provision change could extend to activities that cease to be carried out by a sub-contractor on a client\u2019s behalf and which are then carried out instead by the client on its own behalf. The EAT also decided that the question of who the client was in this case was a matter of fact not law. \u00a0The EAT concluded too narrow an approach had been taken by the Tribunal in not considering whether the Council could also be Regal\u2019s client and so the case was remitted to a fresh Tribunal.<\/p>\n

The EAT’s decision is perhaps not surprising because pretty much the only definition of a “contractor” in TUPE is that is can include a subcontractor. There is also European case law on TUPE which suggests that transfers can take place between subcontractors. I have personally been involved in cases where Tribunals have accepted this proposition.<\/p>\n

Another case to continue the debate about what amounts to an “organised grouping of employees” for the purposes of a service provision change under TUPE is\u00a0Rynda (UK) Ltd v Rhijnsburger.<\/span><\/em>\u00a0 In this case the Claimant was a commercial property manager and one of her main responsibilities was to manage a group of Dutch properties owned by the Rynda Group. The Claimant was originally employed by Drivers Jonas, and after Drivers Jonas was acquired by Deloitte to form Drivers Jonas Deloitte LLP (DJD), the Claimant\u2019s employment transferred to DJD where her sole responsibility was to manage the Dutch properties and no one else assisted her in these duties. After the transfer, DJD decided to withdraw from managing the entire property portfolio and the Rynda Group arranged for its subsidiary (Rynda UK) to manage these properties. The Claimant\u2019s contract ended and she started working for Rynda UK as a senior asset manager, doing exactly the same job as before. Less than a year into this role she was dismissed. The Claimant needed to establish that the final transfer was a relevant transfer under TUPE in order to establish that she had the sufficient service to bring an unfair dismissal claim against Rynda UK.<\/p>\n

The Court of Appeal held the Claimant was an “organised grouping of employees” for the purposes of the TUPE Regulations. It concluded that she was effectively a one-person department and the employer had deliberately allocated her to the Dutch properties. Upon the transfer of the client’s entire portfolio to Rynda UK, there was a service provision change and the Claimant transferred over.<\/p>\n

In the Court’s leading Judgment, it identified a four stage process for Tribunals to follow in future cases of this type;<\/p>\n