No change in commissioning client



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 sometimes refer here to several clients, as long as they are sufficiently linked to share a “common intention” for the new service provider to continue providing substantially the same services.
This was the case in Duncan and Warwick Estate Properties Limited v Ottimo Property Services Limited [2015] UKEAT/0321/14. In this case, the outgoing maintenance contractor had provided the same services to multiple housing blocks, under separate maintenance contracts with each block. When a new maintenance maintenance contractor was hired, the site manager’s employment transferred to the new maintenance contractor under TUPE, even though multiple clients had commissioned the services from his previous employer. 


The client’s identity is not always obvious, and tribunals will need to 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 (see regulation 1(2), TUPE). Alternatively, one organisation may be acting as agent for another (see Horizon Security Services Limited v Ndeze [2014] UKEAT/0071/14/JOJ, Jinks v London Borough of Havering [2015] UKEAT/0157/14). Organisations sometimes use complex contracting arrangements to try to avoid responsibility for employment obligations, often affecting the lowest paid. Unions are expert at litigating over TUPE disputes of this kind.