No Service Provision Change Where No Employees or Work in Progress Transferred

In Ward Hadaway Solicitors v Love and others UKEAT/0471/09, the Employment Appeal Tribunal (EAT) held that there was no service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) where a client awarded a contract for future services to a new provider but continued to use the old provider to complete work in progress under a previous contract.

Mr Love and Mrs Scott were solicitors who worked for Ward Hadaway, one of four law firms that provided legal services to the Nursing and Midwifery Council (NMC). In 2007, NMC chose Capsticks to be its single provider of legal services and as a result, Mr Love and Mrs Scott were dismissed. By October 2007, no new work was being given to Ward Hadaway although it continued to deal with about 100 work in progress cases. All new NMC work went to Capsticks. Mr Love and Mrs Scott sought a declaration regarding the identity of their employer in order to establish whether there had been a relevant TUPE transfer in October 2007 when the new contract was awarded to Capsticks. They also brought unfair dismissal claims.

The Employment Tribunal held that TUPE did not apply and therefore that Mr Love and Mrs Scott remained employees of Ward Hadaway. As such, Ward Hadaway was liable to pay any unfair dismissal compensation. Ward Hadaway appealed to the EAT which upheld the Tribunal's decision. It was found as a matter of fact that no activities had ceased to be carried out by Ward Hadaway because although NMC sent all new work to Capsticks, Ward Hadaway continued to deal with work in progress. This meant that no service provision change had occurred.