The Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal that there had not been a service provision change under the The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006. The case involved the re-tendering of a catering contract at BMW’s Cowley plant. On the facts, the EAT held that the tribunal was entitled to find that the activities pre- and post-transfer were “wholly different”. In April 2005, OCS Group (UK) Ltd entered into a contract to provide catering services. The employees, including Jones and Ciliza, who worked on the contract, were required to provide a range of hot and cold meals. OCS’s catering staff spent a “great deal” of time in the preparation of the hot meals. On 1 August 2007, another company, MIS, took over the catering contract from OCS. The new catering contract provided a substantially reduced meals service, selling pre-prepared sandwiches and salads. There was no requirement for hot food preparation. The tribunal found that the MIS contract was “materially different” from the OCS contract, and therefore no service provision change had occurred. OCS appealed, arguing that a narrow interpretation of activities carried out pre- and post-transfer was problematic. As part of its appeal, OCS tried to argue that when tribunals are determining whether there has been a service provision change they should first look to see if there is an organised grouping of employees as set out in Regulation 3 (3)(a)(i). If there is, only then should the tribunal consider whether there has been a service provision change under Regulation 3(1)(b). The EAT disagreed with OCS, and instead followed earlier cases that stated the correct order for determining whether there has been a service provision change is to look first at the activities undertaken and whether they have been transferred under Regulation 3(1)(b), and then look at the conditions in Regulation 3(3)(a) – including whether there is an organised grouping of employees – to see if they have been satisfied. Interestingly, when considering the activities undertaken by the transferor and transferee, the EAT took a narrow view. It held that although both OCS and MIS provided a catering service, the activities were different, so TUPE did not apply and the employees did not transfer to the new contractor. This was because the employees under the OCS contract were deemed to be chefs because they were cooking and providing hot and cold food. The employees used by MIS were deemed to be sales assistants because they were only providing cold food for sale. Key points What you should do
Case round up: OCS Group UK Ltd v Jones & Ciliza
When determining whether there has been a service provision change, first consider the activities and whether they have transferred, then look at the conditions in Regulation 3(3)(a).
Tribunals normally disregard minor differences between the activities undertaken by the old and new contractors. However, the activities must still be fundamentally the same.
In circumstances where there is a possible TUPE transfer, consider carefully whether the activities undertaken by the transferor and transferee can be classified as broadly the same.
This will require you to look at the overall service being provided, as well as the specific activities performed and the roles that the employees do in performing the activities.
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