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30 October 2012
Court of Appeal (Civil Division)
Maurice Kay, Elias LJJ and Dame Janet Smith
There is no ‘service provision change' within TUPE where the same activities in respect of the same properties are carried out by a property management company before a ‘transfer' as after, but a different company owns those properties after the ‘transfer'.
A property company (W Limited) contracted out its property management services to WCP in anticipation of a sale of shares to WCP's holding company, but that share sale never happened. It was accepted that that was a service provision change under TUPE. Some months later a creditor appointed a receiver to look after those properties and the Managing Director of W Limited (H) continued to provide the property management services to the receiver. So before the appointment, the property management services in respect of those properties were provided by WPC to W Limited; after the appointment, those same services in respect of the same properties were provided by H to the receiver, representing the creditor. Although the activities were identical and involved the same properties, the services were not provided after the appointment to the same client as before the appointment. This was not therefore a service provision change and did not fall within TUPE.
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