In Enterprise Management Services Ltd v Connect-Up Ltd and the Claimants, the EAT has ruled that where there are differences in the activities carried out by the incoming contractor in comparison with the outgoing contractor, even if these differences are fairly unsubstantial this can be enough to mean that there is no service provision change for TUPE purposes.
The case concerned the transfer of a contract for the provision of IT services to schools from Enterprise to Connect. There were some differences between the work done by Enterprise and the contracted awarded to Connect. The main one was that the new contract with did not include services related to curriculum matters (which had represented 15% of the work done by the relevant Enterprise employees). In addition, the services in relation to a number of schools which Enterprise had provided services to were transferred to suppliers other than Connect.
On this basis, the EAT said that the employment judge had been entitled to come to the conclusion that no service provision change had occurred and, therefore, no TUPE transfer had taken place.
The decision is an interesting one because the relatively minor differences between the services provided by Enterprise and Connect were found to be sufficient to prevent TUPE applying. However, cases such as these are very much dependent on their particular facts, and we would advise employers to be cautious about relying on the 15% difference as being sufficient in all cases.
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