TUPE or not TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 ('TUPE') set out an employee’s right to transfer to a new employer, and continue in their role, where a service provision change applies. A service provision change is a change in contractor, where services carried out by one service provider cease and services which are fundamentally the same are carried out instead by another. This could be where a service that was carried out by an external contractor is taken in house; or a service that was carried out in house is then contracted out; or where a service carried out by an external contractor is moved to another external contractor.

The case of Tuitt v London Borough of Richmond upon Thames considered the relevant activities fulfilled by the employee and assessed whether these remained the same, or were fundamentally different, once notice was served to stop the provision of a service.

Specifically, the claimant was employed by Broadland Guarding Services Ltd (Broadland) until her dismissal on 30 June 2018. She worked in a CCTV control room out of hours, between 6pm and 6am. On 28 May 2018, Broadland gave one month’s notice to the respondent (London Borough) to end the contract.

The respondent’s own “Careline” staff were also based in the control room. Their duties included responding to emergency alarms in client’s homes and liaising with various parties following on from the alarms. They were also the main point of call out of hours for all other council matters, such as calls for social workers, emergency responses and calls regarding noise complaints, littering and missed bin collections, amongst others.

Following the termination of the Broadland contract, the respondent chose to no longer employ a full-time CCTV operative between 6pm and 6am.

According to the claimant, the end of the notice period was the date on which she transferred to the respondent. She alleged that the respondent’s existing staff working in the control room on the respondents Careline team took over CCTV monitoring, and the same activities continued after the alleged transfer date. On that basis, she brought a claim against the respondent for automatic unfair dismissal, as the transfer was the sole or principal reason for her being dismissed.

The Employment Tribunal and Employment Appeal Tribunal both agreed that, once Broadland ended the contract, the activities completed by the Careline staff were fundamentally different. In making this determination, the tribunals considered the fact that the respondent chose not to employ a full-time CCTV operative for out of hours cover. Instead, the responsibility for monitoring the CCTV was absorbed as part of the much wider Careline staff role. Due to the significant number of other duties the team were already doing, CCTV monitoring made up a minimal part of their role (around 5% of working time maximum). The nature of the CCTV monitoring function was therefore deemed to be substantially different than the claimant’s pro-active role, which would no longer exist.

It also found that this was not done in an attempt to avoid the TUPE regulations applying, but instead was a result of budgetary constraints that meant the money historically used to fund the CCTV operatives was needed elsewhere.

As a result, the service was found to be fundamentally different once it was incorporated into the Carline staff duties, so no TUPE transfer took place, and the case was dismissed.