To continue reading please register or login to your OHW+ account.
TUPE transferee obligations can apply where a service changing hands is divided among multiple providers on functional lines, explains Dr John McMullen in his latest update.
Under TUPE reg.3(1)(b), the first question for an employment tribunal in every service provision change case is whether or not the activities carried out by the outgoing provider, and then the incoming provider, are fundamentally the same. But what happens when the service is split up on a re-tender, with the service allocated to two or more new providers?
In Kimberley Group Housing Limited v Hambley , the Employment Appeal Tribunal (EAT) rejected the argument that reg.3(1)(b) can only apply where there is one transferee to whom the activities transfer.
In Kimberley, the activities carried out by a single provider were, on re-tendering, divided among two new providers. In this case, this was a quantitative split of the service (with a proportion of properties that the original service provider was looking after divided henceforth between two new providers). TUPE applied.
Does TUPE apply when separate functions go to new service providers?
In Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and Others, the EAT approved this approach.
The issue in this case was whether or not there could be a service provision change when, on a re-tendering of a service, there was a split in functions, with the separated functions given to two new service providers.
Until 31 December 2002, Bol