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Jinks v London Borough of Havering UKEAT/0157/14; (2015) EMPLR 039
23 February 2015
Employment Appeal Tribunal (EAT)
Recorder Luba QC
TUPE protects the rights of employees when a business is transferred, including when there is a ‘service provision change’. A ‘service provision change’ occurs when the identity of the person providing services to a client changes. That can cover three situations: (i) the client contracts out the services to a contractor, which then provides the services on the client’s behalf; (ii) the services cease to be provided by one contractor and are then provided by another contractor - both providing the services on behalf of the client; and (iii) the services cease to be provided by a contractor and are then carried out by the client.
This case establishes that a transfer from a sub-contractor back to the ultimate client, bi-passing the contractor, can be a service provision change.
The council engaged S to run an ice rink and an associated car park. S sub-contracted the car-park to R. The ice rink then closed and the car-park closed shortly after that.
Mr J was employed by R. He claimed that the closure of the car-park was a service provision change, because the activities of running the car-park transferred from R to the council.
The employment tribunal dismissed Mr J’s claim because, for there to be a service provision change from R to the council, R would have to have been a contractor of the council. R was in fact only a sub-contractor - the contractor was S. The EAT pointed out that the tribunal had overlooked the point that TUPE defines ‘contractor’ to include ‘sub-contractor’. The case therefore had to go back to the employment tribunal to decide whether R provided the services ‘on behalf of’ the council; and whether the services were provided by the council after R ceased providing them.