L Tuitt v London Borough of Richmond Upon Thames

For a service provision change under regulation 3 of Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must decide whether the post-change activities are fundamentally the same as the earlier activities. This is a practical assessment of fact and degree. It requires consideration of the character, type and volume of the work, rather than a superficial common label or minor task differences.

A substantial loss of the principal activity, including proactive work and responsiveness, may make the later activity fundamentally different. The reason for the change, including staff availability, does not itself determine the issue. It matters only where it evidences deliberate engineering to evade TUPE.

The claimant had been employed by Broadland Guarding Services Ltd as a night-time CCTV operator for the respondent. When Broadland ended its contract, the respondent did not replace the dedicated CCTV operators. Its Careline staff undertook limited CCTV work alongside their principal emergency-response duties.

The London (South) Employment Tribunal held that there was no service provision change because the activities after 1 July 2018 were not fundamentally the same. It consequently dismissed the claimant’s automatic unfair-dismissal claim against the respondent.

The claimant appealed, challenging the Tribunal’s characterisation of the activities, its treatment of staffing availability and evidence, its reasons, and its refusal to join the London Borough of Wandsworth.

1. Appeal dismissed. The Employment Tribunal asked the correct statutory question under regulation 3(2A) of Transfer of Undertakings (Protection of Employment) Regulations 2006: whether the activities carried out after the alleged transfer were fundamentally the same as those previously carried out by Broadland.

2. The Tribunal was entitled to find a fundamental difference. Before the alleged transfer, a dedicated operator proactively monitored 12 CCTV screens and responded to safety-related calls. Afterwards, a Careline worker undertook any CCTV work only as an adjunct to pressing Careline duties. Monitoring was minimal and reactive, calls went unanswered, routine surveillance ceased, and proactive monitoring had disappeared.

3. The comparison is one of fact and degree. It is not answered by describing both services generally as CCTV monitoring, nor by the unchanged location or equipment. The Tribunal permissibly assessed the nature and volume of the work holistically.

4. Staff availability was not an irrelevant consideration. The statutory inquiry concerns the activity actually undertaken and the extent of its change. The reasons for that change do not directly matter, unless they show deliberate action to evade TUPE. The Tribunal had an evidential basis for rejecting that allegation.

5. Although it would have been preferable for the Tribunal to identify the authorities it considered, that omission was not a material error of law. There was no wrong legal question or erroneous self-direction. Since the claim failed on the fundamental-sameness requirement, the Tribunal did not need to determine regulation 3(3) or the reason for any dismissal. Its refusal to join the London Borough of Wandsworth was a permissible case-management decision and could not affect the result.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 124.
• London (South) Employment Tribunal: oral judgment of 11 February 2020, with written reasons promulgated on 29 February 2020. It held that there was no relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006 and dismissed the automatic unfair-dismissal claim.