TUPE – service provision change
Thomas-James and others v Cornwall County Council and others, has been one of the first cases to examine the application of the service change provision regarding transactions on or after 6 April 2006. These provisions were designed to cover contracting in, contracting out and re-tendering exercises. There are still difficulties with the “amended” TUPE, however, which this case illustrates, when the identification of a transferee for the transferring activities cannot be traced between the outgoing contractor and the new contractor.
Cornwall County Council were one of seventeen service providers contracted by the Legal Services Commission to provide a free legal helpline service. Under this scheme, callers would be routed to the next available adviser from any one of those seventeen with the required category of legal specialism. The LSE put the contracts out for re-tender in 2006 and Cornwall County Council decided not to bid. The Council’s contract and the claimants’ employment contracts with the Council terminated in 2007. The contractors operating the new contract numbered nine rather than seventeen and consisted of some of the past contractors plus a number of new contractors. The claimants and the Council claimed that the contracts of employment had passed to the new service providers, which they denied.
The Employment Tribunal accepted that the claimants had been part of an organised grouping of employees whose purpose would be to carry out activities on behalf of the Legal Services Commission. It could not, however, ascertain which new service provider had taken over the activities previously undertaken by the outgoing contractor – the council. As it was not possible to identify to which of the nine new service providers the council’s former activities had transferred, the claimants were not protected by TUPE as there could be no service provision change.
This is a first instance decision and the case may go to appeal, but it does illustrate the continuing difficulties presented within TUPE.
