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25 Aug 2009

The new guidance stems from the case Metropolitan Resources Ltd v Churchill Dulwich Ltd, a case which concerned the transfer of a contract to provide accommodation to asylum seekers. In this case the EAT held that whether the service provided after a service provision change is ‘fundamentally or essentially the same’ after the transfer is a question of fact and degree. A common sense and pragmatic approach should be applied to this assessment and any material differences should be taken into account.

This case shows that the activities carried out before and after the transfer do not need to be identical for a service provision change to occur. A change of location alone is not sufficient to determine a change of service, nor did the fact that the transfer did not take place on one day have any impact on the EAT’s ruling.

The ruling is significant as the TUPE – Transfer of Undertakings (Protection of Employment) Regulations 2006 – are designed to maintain employee terms and conditions when essentially the same service is moved from one provider to another.

For more guidance on this issue, or to discuss how PBS can help with your HR issues on a retainer or ad-hoc basis, speak to one of our consultants on 0115 9853199, or e-mail info@pbs.uk.com. For fully compliant HR Documents, visit our HR Document Shop http://www.pbs.uk.com/human_resources/

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