TUPE: service provision change occurred despite significant change in the way activities carried out post-transfer
The Employment Appeal Tribunal (EAT) considered the Employment Tribunal’s approach towards identifying whether there had been a service provision change (SPC) and held that the ‘activities’ undertaken before and after a change in service provision were essentially the same, despite being carried out in a different way. Accordingly, a TUPE transfer had occurred (Qlog Ltd v O’Brien and others).
The claim concerned drivers who were employed by a haulage company, McCarthy, which had provided transportation and delivery services to Ribble. Ribble ended its agreement with McCarthy and instead started to use Qlog for its transportation and delivery requirements. Whereas McCarthy had its own vehicles and directly employed drivers to provide the services to Ribble, Qlog had no employed drivers or vehicles and, instead, acted as a middleman putting each delivery out to tender to haulage contractors who delivered the goods, while Qlog remained contractually responsible to Ribble for the deliveries. The drivers did not transfer to Qlog and were dismissed. They claimed their dismissal was unfair. Qlog argued that there had been no SPC because the service they provided was different to the service provided by McCarthy…
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