Transfers to more than one transferee


TUPE can still apply even though, when a service contract is re-tendered, the client decides to split up services that were previously provided under one contract and to divide them between 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, to establish which transferee has taken up the activities to which the employee was assigned before the 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.


Kimberley was a case that involved a “quantitative” sharing of activities. In other words, both transferees performed the same activities after the transfer, and it was a question of dividing the activities between them. In a new case, Arch Initiatives v Greater Manchester West Mental Health Trust [2016] UKEAT/0267/15, supported by UNISON, the commissioning client, when re-tendering the services, decided to reorganise them along “functional” lines: the “case management” function went to one service provider, and the “interventions” function to another. Again, TUPE applied. The EAT observed that there are lots of different ways in which activities can be split when re-tendering a service, for example, in teams, departments, geographically, or by reference to particular functions or processes. As long as there is an “organised grouping”, TUPE will apply to transfer the employment contracts of affected employees to the new provider.