Jeffrey Jupp's TUPE resource

Metropolitan Resources Ltd v Churchill Dulwich Ltd EAT


In this case HHJ Burke QC emphasised that a Reg 3(1)(b) Service Provision Change was an entirely new concept in which prior authority on issue of whether there was a Reg 3(1)(a) transfer was not relevant.

He gave the following guidance (para 30) as to the approach to be taken by the ET (numbers in square brackets added for ease of reading):

[1] The statutory words require the Employment Tribunal to concentrate upon the relevant activities;

[2]  and tribunals will inevitably be faced, as in this case, with arguments that the activities carried on by the alleged transferee are not identical to the activities carried on by the alleged transferor because there are detailed differences between what the former does and what the latter did or in the manner in which the former performs and the latter performed the relevant tasks.

[3]   However it cannot, in my judgment, have been the intention of the introduction of the new concept of service provision change that that concept should not apply because of some minor difference or differences between the nature of the tasks carried on after what is said to have been a service provision change as compared with before it or in the way in which they are performed as compared with the nature or mode of performance of those tasks in the hands of the alleged transferor.

[4]  A commonsense and pragmatic approach is required to enable a case in which problems of this nature arise to be appropriately decided, as was adopted by the Tribunal in the present case.

[5]  The Tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor.

[6]  The answer to that question will be one of fact and degree, to be assessed by the Tribunal on the evidence in the individual case before it.

Link to judgment

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