This case is an example of a Service Provision Change which was not a transfer to which TUPE applied because different activities were carried out before and after the transfer (Reg 3(1)(b)).
The Facts
OCS operates a number of fully managed service contracts including catering. At a BMW plant OCS provided a restaurant and deli bar supported by satellites and a general shop. The Respondents were chef/supervisors working in those satellites and much of their time was spent in the preparation of hot meals. The contract was losing money and ultimately OCS lost the contract to MIS. Under the MIS contract, the satellites did not sell hot fool, only pre-prepared salads and sandwiches. Ms Jones was dismissed and brought a claim against OCS which raised the issue of whether Reg 3 TUPE applied. OCS argued that there had been a Service Provision Change and Ms Jones’ contract had transferred to MIS.
The ET held that TUPE did not apply because the MIS contract provided a substantially reduced service which was “materially different to that operated by [OCS]“. In particular, the satellites did not prepare hot food. OCS appealed on the basis that the ET had concentrated too much on the change of activities rather than the continuation of overall service.
The EAT
The EAT dismissed the appeal. The correct approach in determining whether there has been a service change provision within the meaning of Reg 3(1)(b) TUPE, is to ask whether the activities which ceased to be carried out by the first contractor are carried out instead by the next contractor.
In reaching its decision the EAT took into account the schedules to each contract. The schedule to the OCS contract was very detailed in terms of its requirement both in relation to food provision and management structure. The schedule to the MIS contract contained one brief paragraph setting out requirements under the new contract. The EAT stated that the Tribunal had correctly identified the activity of the first contractor as a full catering service, not merely the provision of food for staff.