Human Capital (Employment) - Review

    View Authors July 2009

    When does a change in service provider constitute a TUPE transfer?

    In Metropolitan Resources Ltd v Churchill Dulwich Ltd & ors the EAT has now made it clear that in trying to work out whether a change in service provider constitutes a TUPE transfer the parties (and ultimately a Tribunal) should ask themselves two questions. First, whether the activities in question have ceased to be carried out by one party (e.g. the client or contractor) and are now being carried out instead by another party (e.g. a new contractor)? In answering this question they should focus on whether the services provided after the change are fundamentally or essentially the same as those provided before the change. They should then go on to ask the second question i.e. whether immediately before the change there was an organised group of employees dedicated to providing the service. If the answer to both of these questions is yes, there will be a "service provision change" for TUPE purposes. The only exception would be where (after the change) the service is provided only in connection with a single specific event or a task of short term duration.

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