Spot the difference — TUPE applied even though activities carried out in different way post transfer

The contract that was the subject of Qlog Ltd v O’Brien related to the transportation of cardboard packaging goods on behalf of a client. The outgoing contractor engaged heavy-goods vehicle (HGV) drivers to work on the contract, along with employees who loaded the vehicles and a transport manager.

When the contract was re-tendered, the incoming contractor was what is known in the industry as a ‘fourth-party logistics platform operation’ — essentially a ‘middle man’ who contracted with other haulage companies to make individual deliveries and collections on behalf of the client. By the time of the tribunal hearing, it was using 30 different firms to deliver goods. As it did not make deliveries itself, it argued that there was no service provision change (SPC) TUPE transfer in respect of the HGV drivers; although it accepted that the loaders and the transport manager would transfer…

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