Transfers to more than one transferee

TUPE can still apply even though, when a service contract is retendered, the client decides to split up services previously provided under one contract and divide them among several different providers (Kimberley Group Housing v Hambley [2008] IRLR 682). Where this happens, the transferring employees should be matched to each new service provider based on an examination of the activities pre- and post-transfer. The idea is to establish which transferee has taken up the activities to which each employee was assigned pre-transfer (Botzen v Rotterdamsche Droogdok Maatschappij BV [1986] Case C-186/83 ECJ). In practice, this exercise often has more to do with working out who should bear the financial cost of redundancies than with continuing any employment.

The Kimberley case involved splitting the same type of activities (providing housing services to asylum seekers) among several service providers, but TUPE can also apply if services are divided up in other ways on a re-tendering. Services can be reorganised based, for example, on teams, departments, geography, functions or processes. In each case, there will be a service provision change if there is evidence that an “organised grouping” carried out the activities before the transfer (Arch Initiatives v Greater Manchester West Mental Health Trust [2016] UKEAT/0267/15).