In deciding whether activities carried out before and after a service provision change (SPC) were fundamentally the same, the Employment Appeal Tribunal (EAT) has confirmed that ‘activities’ had to be defined in a common sense and pragmatic way.
Salvation Army Trustee Company v Bahi and others
A charity, Coventry Cyrenians Ltd (CCL) had two contracts with Coventry City Council to provide accommodation-based support to homeless people. The service was provided to adult male and female service users at ten locations throughout Coventry. Ms Bahi and her colleagues were employed as support workers, to assist service users with matters such as liaising with other agencies, form filling and helping with benefits as well as issues such as alcohol and drug misuse.
Following a decision by the Council to merge the provision of homelessness and ex-offender support and to establish a single point of access, a new contract was awarded to the Salvation Army Trust Company (SAT). SAT acquired large hostel premises to provide sufficient accommodation for the service users. These hostels were staffed overnight by support workers.
CCL and the claimants argued that there had been a service provision change under the TUPE provisions, meaning that their employment would transfer to SAT. An Employment Judge held that the activities carried out before and after the change in contractor had remained fundamentally the same.
The EAT dismissed SAT’s appeal and held that the tribunal Judge had taken the correct approach, steering “a correct course between the twin dangers of overgeneralisation and pedantry”.
Following previous authorities, the EAT noted that ‘activities’ must be interpreted in a common sense and pragmatic way. The definition should be holistic, having regard to the evidence in the round, avoiding too narrow a focus in deciding what the activities were. A pedantic and excessively detailed definition of ‘activities’ would risk defeating the purpose of the service provision change requirements.
This case provides a good example of how activities carried out before and after a service provision change do not need to be identical and a tribunal will take a pragmatic approach in determining whether they can be regarded as ‘fundamentally the same’ for the purposes of the TUPE requirements. The fact that the service users in this case included ex-offenders and were accommodated in different premises after the new contractor took over did not materially alter the activities in question.
The content of this article is for general information only. For further information regarding TUPE and service provision change, please contact a member of Birketts' employment team. Law covered as at November 2016.