Service Provision Change is a Question of Fact

In Metropolitan Resources Ltd (MR Limited) v Churchill Dulwich Ltd (CD Limited) and ors UKEAT/0286/08/RN, the Employment Appeal Tribunal (EAT) has held that it is a question of fact as to whether or not there is a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Migrant Helpline provides accommodation to asylum seekers for the Home Office and had a contract with CD Limited to provide such accommodation at Barry House. Migrant Helpline subsequently decided not to renew the contract with CD Limited and MR Limited took over the provision of services to asylum seekers, providing services in a new way at a new site. Upon expiration of CD Limited's contract, it was claimed that the change in accommodation provider resulted in a relevant transfer under TUPE. The Tribunal held that MR Limited provided essentially the same services as CD Limited and as such, a TUPE transfer was found to have taken place on 26 January 2007 when no more asylum seekers were sent to Barry House. MR Limited appealed.

The EAT upheld the Tribunal's findings and dismissed the appeal. It held that a service provision change has a broad scope under TUPE and it is a question of fact as to whether the relevant conditions under TUPE are met. It found that a "…commonsense and pragmatic approach is required…". The EAT stated that the fundamental question for a Tribunal is "…whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor…".