There has been a recent decision in an Employment Appeal Tribunal that provides some clarity on what happens to staff when you change outsourced service providers and where the staff have worked on more than one contract.
The case related to Eddie Stobart Limited, but would apply, for example, if you have outsourced your IT and then you want to bring it back in house or move it to another supplier. The question arises, is there a TUPE transfer and therefore would the employees who work for the current service provider move to the new service provider? This can be complicated, particularly where the staff work on more than one contract, as happened in the Eddie Stobart Limited case.
As always with TUPE (Transfer of Undertakings (Protection of Employment) Regulations) the position is not straightforward. The facts in the Eddie Stobart Limited case were complex because the employees worked shifts for different customers, but were employed by the same service provider.
The decision by the Employment Appeal Tribunal was that as there was not an “organised grouping” of employees providing service to one specific customer, then there could not be a TUPE transfer.
The result of this decision would seem to be that if your service provider has been providing service to you through a team that is not dedicated just to you, then there will not be a TUPE transfer to a subsequent service provider.
Of course every case will be different and we always recommend that our clients take appropriate legal advice when considering any change that could involve a TUPE transfer, but this case does seem to provide some clarity on when that might occur.
Mike Hill – Itica Consult – March 2012