Ward Hadaway Solicitors v Love & Ors

For a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the relevant activities are identified as a matter of fact. A tribunal may confine them to work actually undertaken for the client, rather than a solicitor’s general availability or expectation of future instructions. Such availability may resemble an economic entity under the traditional transfer provisions rather than a service provision change. The tribunal must also assess whether the activities carried on after the change are fundamentally or essentially the same as those carried on before it. That is a question of fact and degree requiring a common-sense and pragmatic approach.

Ward Hadaway provided regulatory legal services to the Nursing & Midwifery Council under a contract which expired on 30 September 2007. Following a competitive tender, Capsticks became the sole provider from 1 October 2007. Ward Hadaway retained substantial work in progress, and no employees or work in progress transferred to Capsticks.

The Employment Tribunal held that there was no service provision change under regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. It treated the relevant activities as the cases already instructed and accepted, rather than the expectation of future referrals. It also made an alternative finding that the services provided before and after 1 October 2007 were materially different. Ward Hadaway appealed, alleging errors of law concerning the identification and comparison of the activities.

1. Appeal dismissed. The Employment Tribunal’s primary finding was a finding of fact. It was entitled to conclude that the activities for the purposes of a service provision change were the work in progress on cases instructed and accepted by Ward Hadaway.
2. The general availability of a solicitor’s firm to undertake future work, or its expectation of future referrals, need not form part of the relevant activities. Treating availability as an activity could point towards an economic entity under regulation 3(1)(a), rather than a service provision change under regulation 3(1)(b).
3. The Tribunal was entitled to find that the activities had not ceased to be carried out by Ward Hadaway. The work in progress remained with Ward Hadaway and nothing transferred to Capsticks.
4. Whether activities carried on after the alleged change are fundamentally or essentially the same as those carried on before it is a question of fact and degree. A common-sense and pragmatic approach is required.
5. The Tribunal was entitled to find that the nature and quantity of the work, and the character of the service, differed materially. The alternative finding was permissible and appeared correct. Permission to appeal was refused.

• Employment Appeal Tribunal: dismissed Ward Hadaway’s appeal from the Employment Tribunal’s reserved judgment, registered with Reasons on 4 August 2009. The Tribunal’s primary and alternative findings were upheld.