In the case of Mustafa and another v Trek Highways Services Ltd the EAT has provided a timely reminder that a temporary cessation in certain operations being carried out before they are taken over by another provider, will not necessarily prevent the application of TUPE.
Facts
Transport for London awarded a significant contract to carry out road maintenance services in North London commencing in 2007 and ending on 31 March 2013 to Amey Services.
In 2011, Amey subcontracted the traffic management element of its services to Trek Highways Services Ltd.
The ten claimants involved in this case were originally employees of Amey, carrying out traffic management work in North-East London, but their employment transferred to Trek when the work was subcontracted.
In 2012, Transport for London carried out a re-tendering exercise. Amey lost the contracts and (for the region in which the claimants worked) the work was awarded to Ringway Jacobs. The new contracts were due to start on 1 April 2013.
However, in early March 2013 a dispute arose between Amey and Trek. This resulted in Trek suspending its operations and sending its staff home and subsequently the subcontract being terminated less than a couple of weeks before Ringway took over.
The claimants presented themselves for work at the premises of both Amey and Ringway but were turned away.
They subsequently brought tribunal claims, but the employment tribunal found against them, deciding there had been no transfer given that no work was being carried out by the employees when Ringway took over.
However, good sense prevailed at the EAT, where it was decided in line with the available authorities that simply because the activities had ceased a short time before Ringway took over, this did not prevent TUPE applying.
Comment
There is very little case law involving a temporary cessation of work prior to the responsibility for activities changing hands. This case is a useful reinforcement that a break in those activities being carried out is only one factor to consider and will not necessarily mean that TUPE does not apply.
Mustafa and another v Trek Highways Services Ltd and others UKEAT/0063/15, 29 January 2016 (Bailii)
