FACILITIES STAFF WILL NOT AUTOMATICALLY TRANSFER UNDER TUPE IF CLIENT CHANGES AT THE SAME TIME AS SERVICE PROVIDER

02 July 2012

The Employment Appeal Tribunal (EAT) has confirmed Regulations designed to protect employees when the company they work for is taken over by a new owner, will not apply where the contractor providing business services changes at the same time as the client for whom those services are being carried out.

Its ruling, which overturned an earlier employment tribunal decision, meant that a security guard whose contract was terminated when his employer lost a contract to provide security services at a building could not rely on the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations to raise an unfair dismissal claim against the new security service provider. This was because the owners of the building changed at the same time.

TUPE was expanded in 2006 to govern situations where work is outsourced, brought back in-house or the service provider is changed.

In a separate case heard last December the EAT was asked for the first time to decide whether a service provision change (SPC) could be said to have taken place if the client to whom services were being provided changed at the same time. In that case, called the 'Hunter case', it held that the regulations would only apply in this context if the activities carried out before and after an SPC were on behalf of the same client.

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