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TUPE: service provision changeover

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Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Can work which was anticipated and regularly provided, but not contractually guaranteed, be part of a service provision change?

Yes, says the EAT, in Lorne Stewart plc v Hyde & Ors.

Carillion provided largely routine services to Cornwall County Council under a framework agreement, repairing and installing central heating and boilers. Alongside this, the Council could offer further higher value work, but were not obliged to do so and Carillion were not obliged to accept.  In practice, Carillion did all of this work.  Lorne Stewart took over the contract, but argued that the two Claimants who carried out these services did not transfer, as they did not form part of the organised grouping of employees devoted to the routine work. 

Upholding the employment tribunal's decision, HHJ Burke QC held that the lack of contractual commitment was not a relevant consideration. The focus must be on what was going on 'on the ground'.  Following the principles in Enterprise Management Services v Connect-Up, both Claimants carried out work that was or was intended to be carried out by the new provider after the transfer.  The existence of an organised grouping had been admitted, so both Claimants transferred.