C T Plus (Yorkshire) CIC v Black and others
The Transfer of Undertakings (Protection of Employment) Regulations, better known as TUPE, apply to relevant transfers. A relevant transfer can happen where there is a service provision change – for example, a new contractor takes over. Where that’s the case, TUPE operates to transfer workers over to the new provider.
The question in this case was had there been a service provision change? This hinged on whether or not the activities that had been carried out by a contractor (CT Plus) on a client’s (the Council’s) behalf were then carried out instead by a subsequent contractor (Stagecoach) on the client’s behalf.
CT Plus ran a Council-subsidised park-and-ride service. Stagecoach began operating along the same route. This led to the council terminating its arrangement with CT Plus. Stagecoach didn’t take on any CT Plus drivers; it didn’t think that TUPE applied. A claim followed.
The tribunal decided that the CT Plus drivers didn’t transfer because there was no service provision change. It was relevant that Stagecoach:
- didn’t take anything over from CT Plus;
- didn’t have a contract similar to the one between CT Plus and the Council;
- didn’t receive a subsidy like CT Plus had received;
- had changed the timing of the service, and
- had recruited its own team of drivers, mainly by internal transfer.
The EAT upheld that decision; no TUPE transfer had taken place. It’s vital that the client is the same before and after the service provision change, and that wasn’t the case here. The Council was the client under the arrangement with CT Plus; that changed when Stagecoach took over. The Council was no longer the client; rather, Stagecoach was carrying out its own commercial venture on its own behalf – as opposed to on behalf of a client – and the council was just an ‘interested bystander’. So there was no service provision change and no TUPE transfer.