London Borough Of Islington v Bannon & Anor

A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 may occur where a client takes a service in-house, even if its immediate performance is reduced, imperfect or differently resourced. The tribunal must identify the activities actually required and compare the activities before and after the change. It should take a pragmatic and fact-sensitive approach. Minor differences, or the temporary non-performance of some tasks, do not prevent a transfer if the activities are fundamentally or essentially the same.

The Employment Appeal Tribunal will not substitute its assessment for the tribunal’s factual findings where the tribunal has made a careful comparison on evidence and reached a permissible conclusion.

CSV provided Islington’s independent visitor service for children in care. Ms Bannon was CSV’s part-time project co-ordination manager. When the intended replacement contractor declined to proceed and CSV’s contract ended, Islington took the service in-house for about five months while making later arrangements with Action for Children.

Ms Bannon was dismissed for redundancy by CSV and brought an unfair dismissal claim. At a preliminary hearing, the Employment Tribunal held that there had been a service provision change and that the relevant activities, previously undertaken by CSV for Islington, were thereafter carried out by Islington on its own behalf.

Islington appealed, contending that the Tribunal had defined the activities too generally, failed properly to compare the pre- and post-change activities, and overlooked fragmentation.

1. Appeal dismissed. The Employment Judge was entitled to find a service provision change. Islington had taken the independent visitor service in-house after CSV ceased to provide it.

2. The relevant statutory inquiry required identification of the activities performed for the client and a comparison with the activities after the alleged change. The correct practical question was whether the activities performed by the alleged transferee were fundamentally or essentially the same. The inquiry was one of fact and degree, and minor differences in the tasks or the way they were performed did not prevent a service provision change.

3. The Tribunal had correctly identified CSV’s activities from the service specification and the claimant’s job description. It was entitled to find that Islington continued the service: it took the files, maintained contact with the existing independent visitors, dealt with expenses and support, and encouraged the visitors to continue their relationships with the children.

4. Islington’s reduced and reactive service did not alter that conclusion. Some activities had not been performed because the arrangements were unplanned and inadequately resourced, but the continuing work concerning the existing visitors and children remained the same essential service. No other provider performed any part of those activities before September 2011, so a separate finding on fragmentation was unnecessary.

5. The Employment Judge, as fact-finder, had made a careful and sufficiently detailed comparison. The asserted omissions and differences were either addressed or too insignificant to render the conclusion perverse. The unfair dismissal claim was therefore to proceed to a hearing.

• Employment Appeal Tribunal: dismissed Islington’s appeal from the preliminary decision of Employment Judge R A Hemmings, dated 13 December 2011.
• Employment Tribunal: held that there was a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006; the claimant’s unfair dismissal claim remained to be determined.