Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Employment lawTUPE

Case of the week: Enterprise Management Services Ltd v Connect-Up Ltd

by Nicholas Jew 13 Mar 2012
by Nicholas Jew 13 Mar 2012

Enterprise Management Services Ltd v Connect-Up Ltd

FACTS

The claimants were employed by Enterprise Management Services Ltd (Enterprise) on a contract to be the preferred provider of IT support for schools run by Leeds City Council. Enterprise decided not to tender again for the contract when it expired. Connect-Up Ltd won the new contract. The new contract did not cover service cover for curriculum systems, which formed about 15% of the work previously undertaken by Enterprise.

There was a dispute as to whether or not Enterprise’s employees transferred to Connect-Up under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the TUPE Regulations).

At the date of the new contract, Connect-up had signed up 41% of the schools that had previously contracted with Enterprise; over time, Connect-Up signed up 62.5% of the schools formerly signed up to Enterprise, with the remaining schools distributed among five other providers.

DECISION

The TUPE Regulations provide that there is a TUPE transfer where “before the service provision change – there is an organised grouping of employees … which has as its principal purpose the carrying out of the activities concerned on behalf of the client” and “the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task”.

The employment judge held that Enterprise had an organised grouping of employees that had the principal purpose of carrying out activities on behalf of the client. However, the judge found that the activities carried out by Connect-Up were significantly different from those carried out for the council by Enterprise, meaning that there was no transfer of an undertaking. In particular, Connect-Up did not carry out curriculum work, which amounted to 15% of the work done by the organised grouping of Enterprise employees.

The EAT dismissed an appeal against the finding that there was no transfer of an undertaking, agreeing with the employment tribunal on the basis that there were significant differences between the activities carried out by Enterprise and Connect-Up. The activities carried out by Connect-Up were not essentially or fundamentally the same as those carried out by Enterprise. Moreover, the provision of services formerly provided by Enterprise fragmented after its contract came to an end, and the employment judge was entitled to conclude that the provision of services formerly provided by Enterprise was so spread out among other providers as well as Connect-Up that no service provision change had taken place on that basis.

IMPLICATIONS

It is useful to have appellate guidance on service provision changes, as there have not been many decisions on this. However, the decision in this case appears to be out of step with the Government’s guidance, which says that a service provision change would “potentially cover situations where just some of the activities in the original service contract are retendered and awarded to a new contractor, or where the original service contract is split up into two or more components, each of which is assigned to a different contractor”. The guidance goes on to say that, in each of these cases, the key test is whether or not an organised grouping has as its principal purpose the carrying out of the activities that are transferred.

In this case, there was an organised grouping, and the activities that were carried out under the contract pre- and post-transfer appear to have been exactly the same, except that some of the activities (15%) were not awarded to the new contractor. However, the extent to which the new activities differ from the old will always be a matter of fact and degree and it may be hard for the EAT to interfere with the decision of an employment tribunal in this regard. Much will depend on how the “activities” carried out are defined by the tribunal.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Nicholas Jew, employment partner, DLA Piper








Practical guidance from XpertHR on TUPE transfers



  • What constitutes a transfer of an undertaking under the Transfer of Undertakings (Protection of Employment) Regulations 2006? From the XpertHR FAQs section.
  • Case law: service provision changes Read more cases on service provision changes in the XpertHR case law reports section.
  • TUPE transferee unlawfully removed sick pay and reduced holiday entitlement one year after transfer In Campbell v Martin McColl Ltd ET/1804664/2011, the employer in this case fell into the trap of assuming that, as long as it waited for a while (one year in this case) after a TUPE transfer, it could detrimentally alter the contractual benefits of employees who had transferred, in a bid to harmonise its workforce’s terms and conditions.

Nicholas Jew

previous post
TUC calls for Budget investment in young workers
next post
6 April 2012 employment law changes: increase in unfair dismissal qualifying period

You may also like

Minister defends Employment Rights Bill at Acas conference

16 May 2025

CBI chair Soames accuses ministers of not listening...

16 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Contract cleaner loses EAT race discrimination appeal

14 May 2025

Construction workers win compensation claim against defunct employer

9 May 2025

Zero-hours workers’ rights to be extended from beyond...

8 May 2025

Employment tribunal backlog up 23% in a year

7 May 2025

Ministers urged to outlaw misuse of NDAs

7 May 2025

Employment Rights Bill must be tightened to protect...

1 May 2025

Lords criticise ‘opaque’, ‘on-the-hoof’ Employment Rights Bill

30 Apr 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+