Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Tupe valid in transfer of identical services

by Personnel Today 7 May 2002
by Personnel Today 7 May 2002

A Court of Appeal ruling deems transfer of Tupe applies where identical
services, but not the staff, are relocated

Yet again the Court of Appeal has confirmed in RCO Support Services Ltd v Unison,
2002, 12.4.02, EWCA Civ 464, that Tupe can apply to the transfer of cleaning or
catering services even though the new employer does not take on the staff.

The claim arose as a result of RCO’s refusal to consult with Unison over a
new catering and cleaning contract when in-patient services were moved from
Walton Hospital to Fazakerley Hospital – both managed by the Aintree Hospital
NHS Trust.

Cleaning work at Walton Hospital was first contracted out in 1972.
Immediately before the transfer, the contract was held by Initial Hospital
Services. The cleaners employed by Initial were permanently dedicated members
of the in-patients’ cleaning team. They were known as ‘ward girls’ or ‘theatre
girls’. They needed a certain amount of training and operated established
systems with the medical staff.

The transfer was carried out in two phases. Under phase one in 1996, some of
the cleaners transferred to the new hospital (although RCO denied that Tupe
applied). In phase two, RCO denied that Tupe applied and the employment of the
remaining 25 cleaners and three supervisors came to an end on 31 March 1998.

Catering staff at Walton Hospital were initially employed by the trust
directly. There were six chefs and a larger number of catering support staff
who provided a complete catering service for patients and staff.

At Fazakerley, where RCO held the catering contract, the staff restaurant
was replaced by a new catering facility but, apart from that, catering services
were virtually identical to those at Walton hospital. The six chefs at Walton
were moved to Fazakerley but remained employees of the trust. Six members of
staff were redeployed. The remainder were made redundant, although two were
taken on by RCO at a later stage.

Upholding Unison’s complaint, the employment tribunal ruled there was a Tupe
transfer. It found that the arrangement which had been made for cleaning
services at Walton Hospital constituted an "economic entity" because
people did "particular jobs in particular places for particular
people".

Furthermore, each group had "its own identity. Each was staffed by
people dedicated to particular tasks". The tribunal also found that the
"core business" of the domestics moved to Fazacherley "ward for
ward, theatre for theatre… It was no more than a change of location for the
same business carried on by a different firm". As the business was labour
intensive, the transfer of "tangible assets was of little
significance".

The Employment Tribunal adopted a similar approach to the transfer of the
catering facilities.

The Employment Appeal Tribunal rejected RCO’s appeal. The main issue raised
on appeal was that the ET’s ruling was inconsistent with the ECJ’s
"guidance" in Suzen, 1997, ICR 662 to the effect that Tupe should not
apply where the new employer fails to take on the majority of the staff if no
other tangible or intangible assets transfer.

Court of Appeal ruling

Dismissing the appeal, the Court of Appeal ruled:

– The Employment Tribunal was entitled to conclude on the facts, there was a
Tupe transfer of both cleaning and catering services

– The question of whether the new employer takes on staff is just one of the
factors to be considered in deciding whether Tupe applies even in a labour
intensive contract, such as cleaning or catering. No single factor is
determinative of that question

– In the present case, the Employment Tribunal had reached the conclusion
that the economic entity which it had identified prior to the transfer had
"retained its identity" after the transfer and that essentially the
same business was being carried on at a new location.

Anthony Korn is is abarrister at 199 Strand Chambers

Avatar
Personnel Today

previous post
Mini adventure leads to major jobs boost
next post
London bus drivers hold rally for better pay

You may also like

The Search for Talent: Six Major Employer Pitfalls

24 May 2022

Grants scheme set up to support women’s health...

16 May 2022

How music can help to ease anxiety at...

9 May 2022

OH will be key to navigating ‘second pandemic’...

14 Apr 2022

OH urged to be aware of abortion consultations...

8 Apr 2022

How coached eCBT is returning the workplace to...

8 Apr 2022

Why now is the time to plug the...

7 Apr 2022

Two-thirds of shift workers feel health affected by...

18 Mar 2022

TUC warns of April Covid risk assessment ‘confusion’

14 Mar 2022

Consultation on new NHS cancer standards, as waits...

11 Mar 2022
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more
  • Why now is the time to plug the unhealthy gap PROMOTED | We’ve all heard the term ‘health is wealth’...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 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+