TUPE

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The Salvation Army Trustee Co v Bahi EAT – 1 September 2016

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This case concerns whether activities in a Reg 3(1)(b) were fundamentally the same before and after the transfer as required by Reg 3(2A).

The Facts

The Claimants were employed by a charity, CCL. They formed a team working in adult services for Coventry Council in connection with two contracts between CCL and the Council for the provision of accommodation support for homeless people.  CCL’s work involved:  Making an assessment of potential service users; allocating a support worker to those accepted to the service; developing a tailored support plan to the service user and supporting them in accordance with the plan; providing a floating support service once the service user moved on from CCL’s accommodation to other accommodation.

The Council provided its services to the homeless under 22 separate contracts with different providers.  It wished to merge these services and those for ex offenders into one single point of contact.  SAT were awarded this contract.  Initially CCL were intended to be a sub contractor but this did not happen.  SAT utilised its own hostel and acquired another hostel in order to service the contract.

SAT operated the service in a different manner to CCL.  It had an assessment centre where service users were assessed and those with low or medium needs were found private rented accommodation.  Those with high need were admitted to an assessment unit with a support care plan.  The user would then go into accommodation which, if it was to be supported, would be in one of SAT’s hostels.  The service was provided to those over the age of 25 rather than 18 as previously, and the time spent in supported accommodation was markedly shorter than before.  The support workers hours of work were also different.

The ET Judgment

The key issue in the case was whether the activities remained fundamentally the same before and after the transfer.  Whilst there were the differences summarised above, the EJ held that the fundamental activity was the provision of accommodation and the input of a support worker to facilitate the individual returning to mainstream private accommodation.  He did  not consider that the 24 hour concierge attendance compared with the on call 24 hour support was a fundamental difference between the two activities.  Nor was the fact that dispersed accommodation was offered before and hostel accommodation was offered afterwards, constituted a fundamental difference in activity.  The outcomes by which the Council measured the provision of the service were identical both before and after the change.

The EAT Judgment

 SAT appealed and, in essence, argued that the activities before and after the transfer were not fundamentally the same.  The EJ approached the matter too generally and in a simplistic way and that the activities should have been more clearly defined.

The EAT (HHJ Richardson) held at [22] to [23]

  1. The EJ was correct. A pedantic and excessively detailed definition of “activities” would risk defeating the purpose of the SPC provisions. Arch Initiatives v Greater Manchester West Mental Health NHS Trust applied.
  2. In this case the EJ had steered a correct course between the twin dangers of over generalisation and pedantry.
  3. An argument that the EJ had erred by referring to fundamental differences rather than the activities being fundamentally the same was rejected.   He had used the language of “fundamental difference” in antithesis, in direct opposition, to the phrase “fundamentally the same” and in doing so was rejecting the contentions of SAT that the features in question were such that the activities were not fundamentally the same.

Concluding remarks of the EAT

 At [27] HHJ Richardson expressed concern about the cost and expense of resolving an issue such as this and suggested that some form of speedy dispute resolution procedure was highly desirable.

Comment

Winning the argument as to the definition the activity is often critical in an SPC case.  For the transferor this often means seeking a broad interpretation and for the transferee a more narrow and focused definition.   A considerations of how to define this issue is something that needs to be addressed when giving advice at the outset and not left until the Tribunal hearing.

I will be writing a separate post on the suggestion of an early dispute resolution procedure.

Link to judgment

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