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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Clearsprings Management Ltd v M Ankers & Ors [2009] UKEAT 0054_08_2402 (24 February 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0054_08_2402.html Cite as: [2009] UKEAT 0054_08_2402, [2009] UKEAT 54_8_2402 |
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At the Tribunal | |
On 13 November 2008 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MR B M WARMAN
APPELLANT | |
2) ANGEL SERVICES UK LTD 3) H ELABY T/A UNITED PROPERTY MANAGEMENT LIMITED 4) PRIORITY PROPERTIES (NW) LTD 5) HAPPY HOMES UK LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellants | MR MARTYN WEST (Representative) Peninsula Business Services Ltd Litigation Department Riverside New Bailey Street Manchester M3 5PB |
For the First Respondents (Mrs M Ankers & Others) |
No appearance or representation by or on behalf of the First Respondents |
For the Second Respondent (Angel Services Ltd) |
MR M GARGAN (of Counsel) Instructed by: Messrs Davies Arnold Cooper Solicitors 6-8 Bouverie Street London EC4Y 8DD |
For the Third Respondent (United Property Management Ltd) |
MISS J WOODWARD (of Counsel) Instructed by: Messrs Halliwells LLP Solicitors St. James's Court 30 Brown Street Manchester M2 2JF |
For the Fourth Respondent (Priority Properties (NW) lTD |
MR I TRUSTCOTT ((One of Her Majesty's Counsel) Instructed by: Messrs Simpson & Marwick Solicitors 4 Carden Terrace Aberdeen AB10 1US |
For the Fifth Respondent (Happy Homes UK Ltd) |
No appearance or representation by or on behalf of the Fifth Respondents |
SUMMARY
TRANSFER OF UNDERTAKINGS
Whether relevant transfer by way of SPC (TUPE 2006, reg 3(1)(b) and (3). The Employment Tribunal entitled to find that service provided by putative transferor too fragmented to give rise to transfer.
HIS HONOUR JUDGE PETER CLARK
Factual Background
The Law
"activities cease to be carried out by a contractor on a client's behalf … and are carried out instead by another person ('a subsequent contractor') on the client's behalf;
…
and in which the conditions set out in para (3) are satisfied."
"The conditions referred to in paragraph 1(b) are that –
(i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;
(ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration."
The Employment Tribunal decision
(1) There was an activity which constituted a SPC, namely the provision of accommodation and pastoral care to asylum seekers allocated by NASS in the North West, notwithstanding that the SUs would change from time to time, as would the occupied properties and degree of pastoral care required (paragraph 47).
(2) Where no single transferee could be identified as having taken over the activity the Regulations could not be said to operate (paragraph 57).
(3) They did not feel able to identify a potential transfer date, save that it fell on a day between 31 May and 30 June 2006 (after the 2006 Regulations came into force on 6 April 2006). The difficulty in identifying a fixed date indicated that the 'activity' had become so fragmented as to be outside the scope of the regulations (paragraph 74).
(4) On the question of fragmentation the Employment Tribunal found (paras. 86-87) that the SUs for which each of the NW Claimants were responsible transferred after February 2006 to two, or all three of the putative transferees, (a destination table appears at paragraph 52 of their Reasons) and that the present case was distinguishable on its facts from that considered by the Court of Appeal in Fairhurst Ward Abbotts Ltd v Botes Building Limited [2004] ICR 919, a case concerned with the old transfer provisions.
(5) The Tribunal further accepted the argument advanced on behalf of the putative transferees that none of the NW Claimants fell into an organised grouping of resources or employees that were the subject of any relevant transfer so that no division exercise could be performed. None of these Claimants were dedicated to that part of any service which transferred to the relevant new service provider as their roles involved delivering a service to asylum seekers (SUs) who were transferring to other new service providers. The Claimants were further dealing with properties which were transferring to other new service providers or being retained by Clearsprings and being utilised for other purposes (paragraph 100).
The Appeal