TUPE case

Jinks v London Borough of Havering UKEAT/0157/14

  • EAT overturned ET’s strike out of a TUPE claim by employee of a subcontractor when original client in-sourced the service
  • Following Horizon Security Services Ltd v Ndeze, EAT held ET had overly restrictive view
  • It is not the case the client of a sub-contractor, for the purposes of reg 3(1) of TUPE 2006, could only be the contractor to which it was contractually bound to provide a service
  • The EAT reiterated that the client for the purposes of regulation 3(1) was a question of fact, not law, and remitted the case back to the employment tribunal

TUPE applies to a “relevant transfer” – either or both of the following:

(1) A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity (a business transfer). This involves three elements: an economic entity; a transfer of that economic entity; and the economic entity retaining its identity following the transfer.

(2) A client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work “in-house” (a service provision change i.e. first generation outsourcing; a second generation outsourcing or an in-sourcing). The activities carried on after a change in service provider must be “fundamentally or essentially the same” as those carried on before it