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No change in commissioning client
[ch 12: page 469]There can only be a TUPE transfer if the same client commissions the services, before and after the change in service provider. If a new client contracts for the services, for example, a receiver in place of the original client, TUPE will not apply (McCarrick v Hunter [2012] EWCA Civ 1399).
“Client” can refer to several clients, as long as they all share a “common intention” for the new service provider to continue providing the services:
A maintenance contractor provided the same maintenance services to multiple housing blocks under separate maintenance contracts with each block. When a new maintenance contractor was hired to take over the services, the site manager’s employment transferred to the new contractor under TUPE even though multiple clients (each separate housing block) had commissioned the same services from his previous employer.
Duncan and Warwick Estate Properties Limited v Ottimo Property Services Limited [2015] UKEAT/0321/14
https://www.bailii.org/uk/cases/UKEAT/2015/0321_14_0901.html
The client’s identity is not always obvious, and ETs must decide this after examining all the facts. Sometimes, where services have been sub-contracted, the client may be the principal in a long chain of contractors and sub-contractors (regulation 1(2), TUPE). Alternatively, one organisation may be acting as agent for another. Organisations sometimes use complex contracting arrangements to try to avoid responsibility for employment obligations, often affecting the lowest paid. Unions are expert at litigating TUPE disputes of this kind.