The Salvation Army Trustee Company v Bahi & Ors (Transfer of Undertakings: Service Provision Change)

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, the relevant activities must be identified pragmatically and holistically. They must be specific enough to describe what was actually done, but not so detailed that changes in location, scale, duration or delivery method determine the issue without regard to the service as a whole.

The question whether the activities carried on by the new contractor are fundamentally the same is one of fact and degree. A tribunal does not err by considering whether asserted changes are fundamental differences, where its reasons as a whole show that it applied the statutory test in Regulation 3(2A).

Coventry Cyrenians Ltd provided accommodation-based support to homeless people for Coventry City Council. Its employees supported service users in houses of multiple occupation and after they moved into private accommodation.

Following a retendering exercise, The Salvation Army Trustee Company took over the Council’s service. It delivered support through an assessment hub, private accommodation where appropriate, and two large hostels. The service also differed in eligibility, duration and working hours.

By a judgment dated 28 August 2015, an Employment Judge held that the employees’ contracts transferred to The Salvation Army under Transfer of Undertakings (Protection of Employment) Regulations 2006. The Salvation Army appealed, contending that the Tribunal had defined the activities too generally and had not applied the Regulation 3(2A) requirement that activities be fundamentally the same.

1. Appeal dismissed. The Employment Judge made no error of law in holding that there had been a service provision change and that the employees’ contracts transferred.

2. The ordinary meaning of “activities” in Regulation 3(1)(b) must be applied pragmatically. The definition must not be so general that it fails to describe the actual service, but it must also avoid pedantic detail which would defeat the purpose of the service-provision-change provisions. The assessment is holistic and depends on the evidence as a whole.

3. The Employment Judge permissibly defined the relevant activity as providing accommodation-based support to homeless men and women, including support aimed at returning service users to mainstream private accommodation. He was not required to characterise it as long-term support or define it by the use of ten dispersed houses. The Council’s contract did not require that particular location or model of delivery, and support continued after the change.

4. The Employment Judge also applied the correct test under Regulation 3(2A). His references to whether changes were “fundamental” were made in direct opposition to the statutory question whether the activities were fundamentally the same. Read as a whole, his reasons showed that he did not substitute a different test or overlook a supposed middle category.

5. The changes in age range, referral arrangements, accommodation sites, staffing and duration did not require a different conclusion. It was open to the Employment Judge, as a matter of fact and degree, to find that the activities remained fundamentally the same.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Judge’s conclusion that the employees transferred to The Salvation Army under Transfer of Undertakings (Protection of Employment) Regulations 2006.
• Employment Tribunal: By a judgment dated 28 August 2015, Employment Judge Alliott declared that the contracts of employment of four employees transferred from Coventry Cyrenians Ltd to The Salvation Army.