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There can be a service provision change under TUPE even if only part of a service provided by the outgoing contractor is transferred to the new service provider, the other part going to a different contractor.
Bolton Council had contracted out the provision of services to alcohol and/or drug dependent adults in the Bolton area to Greater Manchester West Mental Health NHS Foundation Trust. When the service was re-tendered it was split into two functions: case management and delivery of interventions. Arch Initiatives was awarded the case management function and Lifeline Project Ltd was awarded the delivery of interventions function. Arch refused to take on any of the Trust employees. The employees who provided case management complained that their employment had transferred to Arch and that they had been unfairly dismissed.
Arch argued that the activities concerned had to include both case management and delivery since, before there-tender, the council’s employees worked in two teams (drug dependancy and alcohol dependancy), each team including both case managers and deliverers. The ‘activities’ must therefore have been the activities of the two teams - the activities of the case managers and deliverers dealing with drug dependancy; and activities of the case manager and deliverers dealing with alcohol dependancy. Neither of those activities passed to Arch - only the case management part did. Therefore there was no service provision change and TUPE did not apply. The tribunal disagreed and held that the case managers formed two separate groupings of employees both of which carried out activities which passed to Arch. Arch appealed.The EAT upheld the tribunal’s decision. There were two key issues to look at. First, were the activities pre and post-transfer 'fundamentally or essentially the same'. Second, was there an organised grouping of employees that had, as its principal purpose, the carrying out of the activities concerned on behalf of the client. It noted that there is nothing in TUPE that expressly requires that the relevant activities should constitute 'all of the activities' carried out by the outgoing contractor or all activities necessary to provide a particular service.
The status of employment rights on the transfer of an undertaking is an extremely complex area of...