When Is A TUPE Transfer Not A TUPE Transfer?
Wednesday 28th September 2022
The Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) considered the circumstances in which previously outsourced services being brought in house will not constitute a service provision change and will not trigger a TUPE transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 in the case of Tuitt v London Borough of Richmond Thames.
Facts
Tuitt worked for Broadland CCTV as a CCTV operator. Broadland monitored CCTV for the Respondent from 2005 until 2018 when the Respondent decided to end the contract with Broadland and bring the service in house.
Instead of hiring specialist staff to continue to monitor the CCTV, the Respondent instead tasked its existing Careline staff with CCTV monitoring on top of their other duties. As a result, the Careline staff rarely monitored the CCTV.
Tuitt claimed that there had been a ‘service provision change’ TUPE transfer as the Careline staff were carrying out the same activities she had. She brought a claim in the ET for automatic unfair dismissal.
Decision
The ET considered that on the surface it did appear as though a TUPE transfer had taken place, as the contracted services had been insourced. However, services or activities which are insourced should be ‘fundamentally the same as the activities carried out by the person who has ceased to carry them out’.
Tuitt had carried out proactive monitoring of CCTV, answering calls from the police and public in relation to security matters. The Careline staff were principally assigned to other activities and, due to their high workload, CCTV was no longer monitored proactively, no routine surveillance was carried out and calls from the police and public were not answered. This distinction led the ET to conclude that the activities being carried out were fundamentally different and therefore a TUPE transfer had not occurred.
Tuitt appealed on the basis that changes caused by employee availability should be ignored as the activity was still there to be carried out. However, the EAT dismissed the appeal and upheld the ET’s decision on the basis that the reason for the fundamental difference was not a relevant consideration.
Comment
When considering whether a service provision TUPE transfer has taken place, weight should be given to any differences in the activities before the transfer compared to after. A fundamental difference in the work being carried out, as demonstrated in Tuitt, can prevent TUPE from applying.
Whether TUPE applies will depend on the facts of each case and TUPE transfers can sometimes be tricky to determine.
For any TUPE related queries, please contact a member of the Employment team.
