Anglo Beef Processors UK v Longland & Ors (Transfer of Undertakings)

For a service provision change under regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the question whether activities are fundamentally the same is one of fact and degree. The activities must be identified in a common-sense and pragmatic way. A change from manual to electronic performance does not itself prevent a transfer.

Quantity may be material where there has been a substantial reduction in the activities before the alleged transfer. A tribunal need not, however, use a formal checklist or reproduce its analysis in the conclusion if detailed findings elsewhere show that it compared the activities before and after the change. The multifactorial approach used for other forms of transfer is not readily applicable to a service provision change.

The claimant had provided carcase-classification services at an abattoir under the employment of Meat and Livestock Commercial Services Ltd. The Employment Tribunal at Dundee held that his employment transferred to Anglo Beef Processors UK under TUPE and that he was unfairly dismissed.

Anglo Beef appealed. It contended that electronic video-imaging technology had replaced the principal part of the claimant's work, that the Tribunal had failed to compare the activities and their quantity, and that it should have adopted a multifactorial approach. The claimant cross-appealed on the possible application of regulation 3(1)(a).

The central issue was whether the activities carried out after the insourcing were fundamentally the same as those previously carried out by the contractor.

1. Appeal dismissed. The Employment Tribunal was entitled to find a service provision change under regulation 3(1)(b)(iii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. It had made detailed findings identifying the work before and after the insourcing. Those findings showed that carcases continued to be processed at the same rate, with the same general operational tasks and normally two operatives.

2. The statutory inquiry concerns activities which are fundamentally the same. It does not turn solely on the mode by which an activity is performed. The Tribunal was therefore entitled to regard electronic assessment, rather than manual assessment, as a difference in performance which did not alter the essential activity of classifying, labelling and processing carcases.

3. Quantity can matter. Department for Education v Huke and Evolution Resource Ltd UKEAT/0080/12 concerned a substantial pre-transfer diminution in work. Here, however, there was no evidential basis for the asserted 75% reduction in the claimant's work. The same throughput, staffing and continuing manual tasks supported the finding that there had been no relevant reduction in activity.

4. The Tribunal did not need to set out a bullet-point comparison in its concluding paragraphs. Read as a whole, its findings at paragraphs 13–17 and 34–38 contained an adequate comparison and complied with the approach in Rynda (UK) Ltd v Rhijnsburger [2015] EWCA civ 75. The assessment was one of fact and degree and, absent perversity, was not open to appellate interference.

5. The multifactorial approach derived from Cheeseman v R Brewer Contracts Ltd [2001] IRLR 144 was not readily applicable to this service provision change. The Tribunal's concise reasons, read with its findings, disclosed no error of law or reliance on irrelevant matters.

6. The claimant's cross-appeal concerning regulation 3(1)(a) was formally dismissed as unnecessary, since the substantive appeal failed.

• Employment Appeal Tribunal: Anglo Beef's appeal was dismissed and the claimant's cross-appeal was dismissed as unnecessary.
• Employment Tribunal, Dundee: In a judgment issued on 5 August 2015, held that the claimant's employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and that he was unfairly dismissed.