Example 1: services not fundamentally the same = no transfer

OCS delivered a full catering service to workers at the BMW car plant in Cowley, made up of a restaurant and deli bar serving hot food prepared by OCS employees. BMW replaced OCS with a new contractor running “dry goods kiosks” that did not serve hot food. The role of the incoming contractor’s staff was to sell ready-prepared sandwiches and salads.

The EAT concluded that the services provided by the new contractor were fundamentally different from those provided by OCS and that as a result, there was no service provision change, and OCS’s staff did not transfer to the new business. Minor differences between roles would not prevent a service provision transfer, but material differences would.

OCS Group UK Limited v Jones [2009] EAT/0038/09

www.bailii.org/uk/cases/UKEAT/2009/0038_09_0408.html

Example 2: services not fundamentally the same = no transfer

Nottinghamshire Healthcare NHS Trust closed a residential home for vulnerable adults, rehousing its residents to live independently in the community. Two charities, Perthyn and Choice Support, were awarded the contract to supply community-based care. The Trust argued that the employment contracts of the NHS employees had transferred from the NHS to one or other of the two charities via a service provision change. The nurses argued that there was no service provision change and that they had been unfairly dismissed by the Trust.

The EAT found in favour of the NHS staff. There had been no transfer of the employment contracts to the charities under TUPE, because the community-based services were fundamentally different from those provided in the residential home. Fundamental changes included a new focus on developing skills for independent living, such as cleaning, shopping, cooking and managing money.

Nottinghamshire Healthcare NHS Trust v Hamshaw & Others, Perthyn and Choice Support Respondents [2011] UKEAT0037/11

www.bailii.org/uk/cases/UKEAT/2011/0037_11_0107.html