In C T Plus (Yorkshire) CIC v Black & Others the Employment Tribunal and subsequently the EAT considered whether a service provision change can take place where a new contractor takes over a bus route for its own commercial purposes. The appellant bus company contracted with Hull City Council to provide park and ride services, subsidised by the Council. When Stagecoach set up in competition, the Council cancelled its contract with the appellant on the day that Stagecoach started their service. The Tribunal rejected the claim that a service provision change had taken place in terms of the TUPE Regulations and the EAT agreed. The EAT concluded that Stagecoach were carrying out a service on its own behalf, not on behalf of the Council as a client. This meant that TUPE did not apply as, for there to be a service provision change under TUPE, the client must remain the same before and after the transfer..
In Amaryllis Ltd v McLeod & Ors the Tribunal had to consider whether a service provision change had taken place in terms of the TUPE Regulations. The facts of the case were that Millbrook Furnishings Ltd carried out work for the Ministry of Defence (MoD) for many years. From 2003 to 2008 it did so as a sub-contractor to Amaryllis. From December 2012 the MoD awarded new contracts under a framework agreement, and the contract was re-tendered again in 2014. Millbrook was unsuccessful on retender and the contract was awarded to Amaryllis. In order to assess whether a service provision change had taken place the Tribunal had to consider whether there was an organised grouping of employees in place prior to the transfer of the work to Amaryllis, the principal purpose of which was to carry out activities for the MoD (n.b. this is a requirement for TUPE to apply). The Employment Judge (EJ) looked at evidence relating to the past and was satisfied that the department had originally been set up to service the MoD contract, and that the MoD remained the largest (though not the sole) customer. However, the EAT found that the relevant time to consider what the principal purpose of the grouping of employees was immediately before the transfer and that the Employment Tribunal was wrong to look at the matter on a historic basis.
On a similar theme, in Tees Esk and Wear Valleys NHS Foundation v Harland & Others the EAT upheld an Employment Tribunal's decision to look at the actual activities being carried out by employees immediately before a transfer rather than looking at the activities the group had originally been set up to carry out. In this case a group of workers provided care to an individual - CE. Over a number of years the care needs of CE diminished and the group started caring for other service users. After 10 years the contract was transferred. A Tribunal held that there was no service provision change as the principal purpose of the grouping was no longer the care of CE. When the Trust appealed this finding the EAT confirmed that it was correct to consider the actual activities at the time of the transfer and that was no longer the care of CE.
And finally, in Born London Ltd v Spire Production Services Ltd, the incorrect description of a Christmas bonus as being "non contractual" when providing employee liability information under the TUPE Regulations, resulted in a Tribunal claim by the transferee. Born London Ltd claimed for £100,000 for breach of the obligation to provide employee liability information under Regulation 11 of TUPE. However, the Employment Tribunal found that the obligation under Regulation 11 does not require a transferor to specify the contractual status of a term and so there was no breach. The EAT agreed saying that the notification required by Regulation 11 is not limited to contractual terms. Even if information had been wrongly volunteered that the Christmas bonus payment was non-contractual, that was additional information, which did not fall within the Regulation 11 requirement.