Hunter v McCarrick (Transfer of Undertakings : Transfer) [2011] UKEAT 0617_10_1312 (13 December 2011)

Hunter v McCarrick (Transfer of Undertakings : Transfer) [2011] UKEAT 0617_10_1312 (13 December 2011)

A service provision change under Regulation 3(1)(b) of TUPE requires that the activities are carried out for the same client before and after the change of contractor. The Employment Tribunal erred in law by holding that a service provision change occurred when both the contractor and the client changed. The facts did not support a transfer of an undertaking under Regulation 3(1)(a), and the Tribunal failed to consider the necessary conditions in Regulation 3(3)(a).

Citation
[2011] UKEAT 0617_10_1312
Parties
Appellant: Mr Hunter; Respondent: Mr McCarrick
Jurisdiction
United Kingdom
Judgment Date
13 December 2011
Procedural Posture
Employment Appeal Tribunal (eat) Appeal / Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Transfer of Undertakings (protection of Employment) Regulations 2006 (tupe), Service Provision Change, Transfer of Undertaking, Continuity of Employment, Unfair Dismissal
Employment Law Transfer of Undertakings (protection of Employment) Regulations 2006 (tupe) Service Provision Change Transfer of Undertaking Continuity of Employment Unfair Dismissal

Case Brief

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Parties

Mr Hunter

Appellant

Mr McCarrick

Respondent

Procedural Posture

Employment Appeal Tribunal (eat) Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether a service provision change under Regulation 3(1)(b) of TUPE requires the client to remain the same before and after the change of contractor
  2. 2 Whether the Employment Tribunal erred in holding there was a service provision change when both contractor and client changed
  3. 3 Whether the facts supported a transfer of an undertaking under Regulation 3(1)(a) of TUPE

Ratio Decidendi

A service provision change under Regulation 3(1)(b) of TUPE requires that the activities are carried out for the same client before and after the change of contractor. The Employment Tribunal erred in law by holding that a service provision change occurred when both the contractor and the client changed. The facts did not support a transfer of an undertaking under Regulation 3(1)(a), and the Tribunal failed to consider the necessary conditions in Regulation 3(3)(a).

Court Disposition

Appeal allowed

Orders

  • Set aside the finding of the Employment Tribunal that in August 2009 there was a service provision change within the meaning of Regulation 3(1)(b) of TUPE and a transfer of Mr McCarrick’s employment to Mr Hunter.
  • Substitute a finding that the employment of Mr McCarrick did not transfer to Mr Hunter pursuant to TUPE.