SUMMARY
TRANSFER OF UNDERTAKINGS – Transfer
Islington was not able to effect its
intended service provision change from CSV to Action for Children due concerns
by the latter over the Claimant’ disciplinary record with CSV. At the last
minute it took in-house the discharge of its statutory duties under the Children
Act. The Employment Judge correctly found there was a service provision
change. The appeal by Islington was dismissed and a hearing of the Claimant’s
unfair dismissal case ordered.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about the definition of a service provision change under TUPE
2006. I will refer to the parties as the Claimant, Ms Bannon, and the
Respondents, Community Service Volunteers (CSV) and the London Borough of
Islington.
Introduction
2.
It is an appeal by Islington against a Judgment of
Employment Judge R A Hemmings, sitting alone at a PHR, given
with reserved reasons on 13 December 2011 following a two‑day
hearing. The Claimant is represented by Ms Keira Gore, Islington by
Ms Natasha Joffe and CSV by Mr Keith Morton QC, junior
counsel having represented CSV hitherto.
Background
3.
The source of the litigation is a claim of unfair dismissal by the
Claimant, but prior to the determination of that matter it was necessary
following a case management discussion to determine the status of the Claimant
in relation to the Transfer of Undertakings (Protection
of Employment) Regulations (TUPE). Four questions were directed,
which the Judge answered, and, in so far as they are now relevant, the Judge
came to the following conclusions (paragraph 14):
“(1) There has been a change of service provider within the
meaning of [TUPE]. […]
(3) The activities which ceased to be carried out by the First
Respondent [CSV] on behalf on [sic] the Second Respondent [Islington] are now
being carried out instead by the Second Respondent on its own behalf.”
4.
The essential issue was whether the Regulations applied to the
relationship between the three parties in this litigation. Islington contended
that TUPE did not apply; CSV contended it did; and Ms Bannon, who might be
agnostic in this, prefers to litigate against Islington to CSV, for, if the
activities in question were regulated by TUPE and there was a service provision
change, she would contend that she was automatically unfairly dismissed by reason
of the transfer. Arguably, she has more in her armoury against Islington. As
things stand, in the light of the Judge’s decision that TUPE applied, the
hearing of the Claimant’s unfair dismissal claim was set up for a hearing that
has not yet taken place.
5.
Following Islington’s appeal, the papers came in front of
Mr Recorder Luba QC, who sent it to a full hearing, although it
has to be said his approach to it as to the merits was lukewarm; what he said
was he thought the Judgment was right but he could not say that the grounds of appeal
had no prospects at all. He notably did not decide that it did have reasonable
prospects of success.
The legislation
6.
The legislation relevant to these proceedings is in two parts. The
first is the Children Act 1989 (CA), which provides as
follows:
“Independent Visitors for children looked after by a local
authority
(1) A local authority looking after children must appoint an
independent visitor to be the child’s visitor if—
(a) the child falls within a
description prescribed in regulations made by the appropriate national
authority; or
(b) in any other case, it appears to
them that it would be in the child’s interest to do so.
(2) A person appointed under this section must visit, befriend
and advise the child.
(3) A person appointed under this section is entitled to recover
from the appointing authority any reasonable expenses incurred by that person
for the purposes of that person’s function under this section.”
7.
As to TUPE, the relevant provisions are these (paras 3(1)(b)):
“[…] a service provision change, that is a situation in which—
[…] (iii) activities cease to be carried out by a contractor or
a subsequent contractor on a client’s behalf (whether or not those activities
had previously been carried out by the client on his own behalf) and are
carried out instead by the client on his own behalf
and in which the conditions set out in paragraph (3) are
satisfied.”
8.
The conditions in sub‑paragraph (3)(a) are as follows:
“Immediately before the service provision change—
(i) there is an organised grouping of employees situated in
Great Britain which has as its principal purpose the carrying out of activities
concerned on behalf of the client;
(ii) the client intends that the activities will, following the
service provision change, be carried out by the transferee other than in
connection with a single specific event or task of short‑term duration
[…].”
9.
An organised grouping of employees can include a single employee.
The facts
10.
The Claimant was employed by CSV as its project co‑ordination
manager, part‑time (25 hours a week), responsible to Islington Independent
Visitors’ “Allies in Islington” scheme and line‑managed by Ihona Hirving.
The Tribunal summarised her job description as follows (paragraph 13):
“Her key responsibilities were to recruit, train, screen and
support volunteers towards becoming Independent Visitors and then to
participate in the matching of a child or young person in care to an
Independent Visitor and to provide continuing support to the Independent
Visitors, individually and through Support Group meetings, as well as liaising
with Islington’s social care professionals.”
11.
The job specification, which has been drawn to my attention, includes
the way in which the Claimant jobholder would carry out her duties, which in
the specification and in the job description includes those. The job
specification includes a person specification, and plainly Ms Bannon met
those; she was to be employed for 21 hours a week.
12.
The relationship: Islington decided to discharge its statutory duties
under the CA through the medium of CSV, and to that end CSV was awarded a
contract, or specification, undated but apparently for 2005/2006. There was
discussion about a new specification to be awarded for 2011 and onwards, but
that came to nothing, and it seems to me that the activities within the meaning
of TUPE are those that are contained in the 2005/2006 specification and the job
description of the Claimant. The first stage the Judge went through was to
examine what were the activities conducted by CSV as at 31 March 2011.
At the time the requirement of Islington was for 15 independent visitors; in
the proposed but unadopted 2011 specification, the number went up to 18.
13.
Ms Bannon at the time was subject to discipline. Islington’s
proposal to award the contract to Action for Children foundered, because Action
for Children were unwilling to take on the project with her in place in the
uncertainty that prevailed. On 31 March 2011, there being no
agreement to extend the relationship with CSV or for it to be rescued by Action
for Children, the Claimant was dismissed by reason of redundancy. It is fair
to say that CSV had in mind redundancy plans prior to the events in this case.
14.
The Judge analysed what the activities were that were being conducted by
CSV at the relevant time. Ms Joffe concedes that there is no error of law
in the Judge’s description of those facts; they are fully described by
reference to the documents that I have mentioned and the Judge’s summary. In
short, the Judge invoked the description of the activities as the service
provided by CSV, which is precisely the language of the 2005 service
specification, and the approach was this:
“10. ...
‘1.1 An Independent Visitor is a person (usually a
volunteer) independent of the local authority who befriends a young person who
meets the necessary criteria.
1.2 Independent Visitors provide friendship and commitment,
which can help a young person to develop self‑esteem and confidence
through sharing interest and activities. They can complement the relationships
and activities of Islington Social Services in promoting the young person’s.
1.3 Islington’s
Independent Visitor Service is provided by CSV’s Allies Project.’
11. Accordingly, a primary objective of the Service is to
provide eligible ‘looked‑after’ youngsters (i.e. eligible youngsters in
care), who do not have any close parental contact, with social access to a
(rigorously screened) genuinely interested non‑family adult, with whom to
enjoy leisure activities and with whom to build a trusting and pleasurable
relationship, i.e. genuine unconditional friendship with a trustworthy adult,
something likely to be missing from their life‑experiences of adults
[sic] figures.
12. Both before and after 1 April 2011 the Allies
Project was promoted on the web sites of both Islington and CSV, inviting those
interested in becoming voluntary visitors to apply. At the time material to these
proceedings CSV had about 15 active Visitors, consistently with Islington’s
prevailing requirements.”
15.
The reference to promotion on the website relates to the way in which
Islington, or CSV, would make known to people who might give their services to
become independent visitors. As the Judge put it, 1 April 2011
arrived with the entirely unintended consequence for Islington that no service
provision contract with an external provider was in place, and so Islington had
to do something. It decided that it would provide the service under its
statutory duty itself, and to this end it inherited all the material CSV had in
its possession – its files about volunteers and the files about looked‑after
children (LAC). The way in which that impacted was that a reduced service was
offered to the people in Islington. The Judge had the advantage to hear from a
visitor, Ms Rahaman, who described the situation before and after the
event; she described (see paragraph 25) things going on much as they had
before.
16.
For five months, Islington ran the service as best it could so as to
meet its statutory duty and arranged with Action for Children in September a
limited service, known as a spot service. The way in which Islington dealt
with this was described by the Judge in the following terms
(paragraph 27):
“Overall, the amount of time occupied by Islington on the
Independent Visitor service was relatively modest and evidently less than the
25 hours per week provided for under the former CSV service‑provision
contracts. Jackie Bowles was occupied for a couple of hours each month
processing any expense claims received and monitoring CRB records/checks to
ensure they were up to date. Since Ms Mosesh’s appointment, she and
Jackie Bowles organised and chaired the Group Support meeting in September
and Ms Mosesh dealt with an email and telephone enquiry from an
Independent Visitor. No doubt the monthly reports from Independent Visitors
were read, assessed, actioned if necessary, and filed. Between the five months
April to August inclusive Islington alone were available to deal with every
aspect of the Independent Visitor Service, in all respects, including any, if
any, requests from looked‑after youngsters for allocation of an
Independent Visitor and their matching from the available pool of Independent
Visitors inherited from CSV. Otherwise the range of recruitment functions,
ultimately undertaken by Action for Children from September 2011 onwards,
appear to have been unresourced and neglected. The Independent Visitor service
between April and September 2011 was managed overall reactively by
Islington as opposed to CSV’s active management of the service.”
17.
Employment Judge Hemmings in accordance with the law – no
objection is taken to that account – and to the authorities, to which I will
turn in due course - noted thereafter that its current intention was to join
forces with others to provide the service. His conclusions are set out
succinctly in two‑and‑a‑half pages indicating that there was
an organised grouping of employees and noting that the focus was on whether the
service was, after cessation by CSV, carried out instead by Islington on its
own behalf. The Judge concluded as follows:
“31.6 But that is not what happened. Islington did not suspend
the service. Unwelcome and unplanned though the situation was, the facts
clearly establish that Islington attempted to cure their problem of having no
contractor under contract by initiatives to secure Action for Children
belatedly signing up to the service‑provision contract and in default
initiatives with CSV to restore the past relationship and continue as the
provider.
31.7 When it became apparent that these initiatives had failed,
as it quickly did. Islington put in place its own arrangements for the
provision of the service. It took possession of all of CSV’s files relating to
the service. It appointed Jackie Bowles to undertake the routine
administration of expenses. It corresponded with the Independent Visitors to
inform them of what they were doing. The Independent Visitors submitted their
monthly reports of their meetings with the youngsters assigned to them as
necessary, and filed them; expense claims were processed and CSV’s financial
systems were acquired and integrated within Islington’s Finance Department for
that purpose; Independent Visitors were advised to contact Ida Cohen as their
point of contact if they needed to discuss their work with the matched‑child
in any way, including provision of urgent support if required; and as early as
21 April 2011 the Independent Visitors were effectively requested and
expressly encouraged to carry on as normal, supporting the children from
Islington with whom they were matched. Masani Mosesh, an Independent
Reviewing officer and qualified Social Worker was appointed to provide support
to the group of independent volunteers, she and Jackie Bowles arranged a
support meeting for 22 September 2011; Ms Mosesh became the point of
contact for support and was used from within the team of Independent
Volunteers; and further support group meetings were planned.
31.8 The level of active engagement in providing the service in
the first three weeks of April 2011 was minimal and the subsequent provision
grew incrementally. No third party was involved in providing any part of the
service before September and during September Action for Children came under
contract for the recruitment and matching process in respect of future
volunteer applicants to enter the Independent Visitor service, but with no
involvement with the existing team of ex‑CSV independent volunteers.
31.9 The scope and resources of the service provided for 4‑5
months by Islington may have been unsatisfactory, unsurprisingly as the 25‑hour
per week resource represented by the Claimant was unavailable to Islington, and
their method of resourcing the service may have been different to CSV, but the
Tribunal is satisfied that Islington carried on and carried out the Independent
Volunteer service i.e. the Activity previously carried on by CSV and its
contractor, on its own behalf except for recruiting any new independent
volunteers.”
18.
So, the Judge’s overall conclusion was that this was “in‑housing”,
and he answered the questions posed for him at the CMD in advance of his own
PHR by para 31.9 above.
Islington’s case
19.
It is contended on behalf of Islington that the Judgment is perverse.
The succinct argument that Ms Joffe addresses is that the Tribunal
operated on a generic rather than a detail‑specific approach to the
activities and fell into error by looking more widely than is required by the
law. She contends by reference to the authorities that Tribunals should not
take a broad‑brush approach to these matters. Her principal ground is
that the Tribunal failed adequately to identify the activities carried out by
CSV. It is to be noted that this is a qualified criticism and not one of the
Judge failing to analyse the activities at all.
20.
Her principal argument is that there are differences between what CSV
was doing and what Islington did or could do immediately post‑1 April 2011.
She singles out the training of new volunteers (the independent visitors), the
matching of volunteers to LAC, publicity and promotion of the service, and
monitoring of the way in which the independent visitors carried out their
work. She contends that the Tribunal has made insufficient findings on the
activities done by Islington and that there is no essential similarity between
the pre and post‑service change position.
21.
Secondly, she contends that the Tribunal failed to consider whether the
activities were fundamentally or essentially the same as that carried on by
CSV, as to which she relies on the language used in Metropolitan Resources
v Churchill Dulwich [2009] IRLR 700. In as much as it might
be inferred that the Judge decided that the activities of CSV and Islington
were fundamentally or essentially the same, the Judgment is perverse. This
meets the standard for an overwhelming case that he misconstrued the evidence.
22.
Finally, Ms Joffe contends that the Tribunal Judge failed to
consider her argument that there was fragmentation of CSV’s activities after
1 April 2011, and she is at least, on behalf of her client, owed a
finding by the Judge on that.
The Claimant’s case and CSV’s case
23.
Ms Gore and Mr Morton QC go figuratively hand in hand,
Mr Morton QC engagingly adopting all her submissions, she having by
agreement addressed me first. Ms Gore contends that the standard of
perversity is not met in this case. The Judge made adequate findings as to the
conduct of such activities as Islington took back to itself both in his
description of the facts and in the astringent conclusions he reached at
paragraph 31 and following. The Judge carried out the necessary
comparative exercise, and the criticism of perversity cannot weigh, since the
Judge expressly recognised that there was some non‑performance by
Islington of the activities conducted by CSV; the Judge had those in mind and
could not be said to have made perverse conclusions. The principal argument of
Ms Joffe, as to perversity, which is based upon the passage I have cited
from paragraph 27 above, can be resolved in this way: the Judge was not
deciding that there were requests from LAC during the period April to
September; this is not a finding. It is qualified by the words “if any
requests”. The absence of recruitment is explicable on the basis that there was
none going on at the time. It followed therefore that there was no training.
24.
Ms Gore points to the finding in paragraph 12 that both before
and after 1 April 2011, CSV had about 15 active visitors, consistent
with Islington’s prevailing requirements. So, although the specification
called for 18 in its later version, 15 was the extant version, and that was
what was prevailing at the time. The fragmentation argument was met by
Ms Gore by saying that the finding by the Judge, that Islington took over
everything, is a complete answer. This was not a situation where, to take the
example in debate, two canteens are being run by a single contractor and then
they are split into two and handed over to two successors; there was only
Islington, as the Judge expressly found.
25.
Mr Morton QC, adopting Ms Gore’s argument, contends that
the activity is the provision of the independent visitor service, and,
reassuringly, he relies upon my Judgment in Ward Hadaway Solicitors v Love and Ors
[2010] UKEAT/0471/09, contending these matters such as the findings about what the
activities are is one that is fact‑sensitive. He also relied upon the
use of the word “intention” in TUPE paragraph 3(1)(b)(ii) (see above) which
is an intention as to the way in which the client anticipates that the work
will be done. Although this is primarily, as the Judge found, to deal with
short‑term projects such as is illustrated by the Judgment in Rygaard v Skro Molle Akustik A/S
[1996] IRLR 51, the intention of Islington was to carry on provision of the
service to discharge its statutory duty, and this is relevant to the
description of the activities post‑1 April 2011.
26.
Ms Joffe did not dissent from Mr Morton’s invocation of the
correctness of my Judgment in Ward Hadaway.
The legal principles
27.
I set out the legal principles in Ward Hadaway by
reference to the principal authorities and given the endorsement of the Bar in
front of me I will save everybody’s time and simply incorporate what I there
said:
“The legal principles applicable in this case
arise from a number of the authorities which have been put before us. We are
most grateful to HHJ Burke QC for his analysis of the service provision changes
in new TUPE 2006 set out in his judgment in Metropolitan Resources Ltd v
Churchill Dulwich Ltd [2009] ICR 1380, heard before but reported after the judgment
in the present case. The facts of that case are in one sense similar to ours
in that they are to do with the loss of a contract for the provision to the
Home Office of accommodation for asylum seekers and its inheritance by another
provider. In that case a judgment by the employment tribunal that there was a
relevant service provision change was upheld on appeal. On his way to making
that conclusion, Judge Burke set out the three categories of service provision
change and distinguished those from the economic entity:
‘27 “Service provision change” is a wholly new statutory
concept. It is not defined in terms of economic entity or of other concepts
which have developed under the 1981 Regulations or by Community decisions on
the Acquired Rights Directive prior to April 2006 when the new Regulations took
effect. The circumstances in which service provision change is established
are, in my judgment, comprehensively and clearly set out in regulation 3(1)(b)
itself and regulation 3(3); if there was, immediately before the change relied
upon, an organised grouping of employees which had as its principal purpose the
carrying out of the activities in question, the client intends that those
activities will be carried out by the alleged transferee, other than in connection
with a single specific event or a task of short term duration, and the
activities do not consist totally or mainly of the supply of goods for the
client's use, and if those activities cease to be carried out by the alleged
transferor and are carried out instead by the alleged transferee, a relevant
transfer exists. In contrast to the words used to define transfer in the 1981
Regulations the new provisions appear to be straightforward; and their
application to an individual case is, in my judgment, essentially one of fact.’
He regarded the new three-part definition of service provision
change as straightforward. It was introduced in order to alleviate the
difficulties of old TUPE.
24. Judge Burke then went on to consider, taking,
a straightforward and commonsense application, what a Tribunal should do, and
he said this:
‘30. The statutory words require the employment tribunal to
concentrate upon the relevant activities; and tribunals will inevitably be
faced, as in this case, with arguments that the activities carried on by the
alleged transferee are not identical to the activities carried on by the
alleged transferor because there are detailed differences between what the
former does and what the latter did or in the manner in which the former performs
and the latter performed the relevant tasks. However, it cannot, in my
judgment, have been the intention of the introduction of the new concept of
service provision change that that concept should not apply because of some
minor difference or differences between the nature of the tasks carried on
after what is said to have been a service provision change as compared with
before it or in the way in which they are performed as compared with the nature
or mode of performance of those tasks in the hands of the alleged transferor. A
common sense and pragmatic approach is required to enable a case in which
problems of this nature arise to be appropriately decided, as was adopted by
the tribunal in the present case. The tribunal needs to ask itself whether the
activities carried on by the alleged transferee are fundamentally or
essentially the same as those carried out by the alleged transferor. The
answer to that question will be one of fact and degree, to be assessed by the
tribunal on the evidence in the individual case before it.’
He also invoked an earlier judgment on new TUPE 2006 provided by
Langstaff J and members in Kimberley Group Housing Ltd v Hambley & Ors
[2008] ICR 1030. That was substantially followed by HHJ Ansell
in OCS Group UK Ltd v Jones [2009] UKEAT/0038/09.
25. The only difference appears in a judgment
which I gave in Compass Group UK & Ireland T/A Scholarest v Burke & Ors UKEAT/0623/06. In certain circumstances the
analysis of what is fact and what is law suggested by Lord Hoffmann in Lawson
v Serco Ltd [2006] ICR 250 gives rise to a question of law. So, a decision
as to what are activities under TUPE 2006 is one for the Employment Tribunal
alone. The findings of fact deserve sanctity. But the determination of an
essential question of law once findings of fact are made is a question of law. Mr
Sweeney relies upon that.”
28.
As we pointed out in paragraph 27 of that Judgment, this is a
question of fact. The application of the facts is a question of law. The
references to Metropolitan Resources are contained in that
Judgment. Since then there has been a number of other authorities, but in my
judgment the situation is clearly set out by HHJ Burke QC. What he
went on to say in Metropolitan Resources was this:
“36. At paragraph 24 of their judgment the
Tribunal applied the correct test when it looked for the essential service or
activity provided by MRL; and in finding that it was the same as that provided
by CB the Tribunal reached a factual finding which was open to them. The
Tribunal was alive to all of the differences on which Mr Bourne relies. The
difference in location was expressly considered at paragraphs 25 and 27; the
extra services provided by MRL were expressly referred to in paragraph 24; the
fact that MRL's operation began and continued without any of CD's employees,
management or otherwise, was fully appreciated by the Tribunal which found that
the CD employees did not go to Coombe Farm until 2 April and that MRL took on
their own employees when they entered into their contract with MH; the Tribunal
also expressly referred to the difference between Coombe Farm and Barry House
in terms of security. Despite those differences, to which it cannot be said,
reading the judgment as a whole, that the Tribunal failed to pay regard, the
Tribunal found that the activities carried on by MRL amounted essentially to
the provision of good quality accommodation to asylum seekers together with
associated services and that they were the same as those provided by CD.”
29.
There was debate before me about whether what might be described is a
generic approach is correct, or a more detailed approach. Lady Smith
faced this problem in Argyll Coastal Services Ltd v Stirling and Ors UKEATS/0012/11 when she said this:
“Regarding ‘activities’ it seems plain from the terms of both
regulation 3(1)(b) and 3(3)(a)(i) that Parliament, by using the word
‘activities’ had in mind considering what it was that the client required of
the transferor or employer. What exactly was the service that was contracted
for?”
30.
As to the degree of scrutiny, a similar view was taken by
Langstaff J and members in Kimberley (see above), where they
said this:
“28. As to whether there was here a service
provision change the Tribunal identified the activities as we have described
and no one challenges that description. It seems to us that care may need to
be taken by a Tribunal in deciding what it is that constitutes the relevant
activities. If, for instance, here the relevant activities had been described
as ‘maintenance operations’ then it is possible that there might have been a
different conclusion, but we cannot consider that further. The Tribunal found
that the activities of providing suitable accommodation and related supported
services to asylum seekers in the town concerned had been carried out by a
contractor on a client's behalf. That is all that 3(1)(b)(ii) looks at: to see
that those activities have ceased. […]
35. We conclude that the Tribunal here was
entitled to come to the view that there was a service provision change. It may
be that there are some circumstances in which a service which is being provided
by one contractor to a client is in the event so fragmented that nothing which
one can properly determine as being a service provision change has taken
place. This Tribunal considered whether that was the case here and concluded
it was not. We think that since there are two overlapping contracts now
providing for activities which were previously provided by one provider that
the Tribunal was entitled to come to that view. Having come to that view the
question then turns to what the consequence is. We observe that when a
Tribunal is examining the question whether there is a service provision change
or not it is of course entitled to, and must, look at all the facts and their
implications in the round, and it may be that a Tribunal wishes to take into
account as indicating that there is no service provision change any
difficulties in determining who should take responsibility for an employee's
contract after any given date. But as a matter of clarity and logical
progression having taken that into account in determining whether there is a
service provision change, as this Tribunal here in our view was entitled to do,
we turn now to what the consequence is and how Regulation 4 operates.”
Discussion and conclusions
31.
Applying those authorities to the present circumstances, it has been
very helpful for me to accept Ms Joffe’s approach as to the position when
CSV held the contract. There is a description of the activities in the service
specification and in the job description; the activities are correctly
described, as she accepts, by the Judge, and so there is no criticism of his
analysis as a matter of fact of what the activities were to which TUPE is said
to apply.
32.
Turning, then, to the position after that, it plainly was the intention
of Islington to discharge its functions under the statute itself; nobody else
was there. Does its imperfect performance of that duty mean there was no
service provision change? As the Judge recorded, Islington’s performance was
unsatisfactory; it has acknowledged that. It also acknowledged that the
performance of the duties was unresourced.
33.
In my judgment, that does not change the essential examination of what
occurred on the change. The activities included those done by CSV. Not all of
them were carried out, because of the lack of resources, or because this
situation landed on Islington’s doorstep at short notice; it did the best it
could. It could not be as ambitious and expansive as CSV was. Nevertheless,
it had the work in progress, as I will call it, of the existing relationships
between the independent visitors organised by CSV and its LAC. There is no
finding that any individual actually came forward and sought an independent
visitor at that stage. I accept Ms Gore’s analysis of the way in which
the Employment Judge expressed himself in paragraph 27 of the reasons.
34.
The Judge did not have to decide specifically on fragmentation. I agree
with Ms Joffe that she may feel short‑changed that the Judge did not
specifically dilate upon her estimable argument, but the finding is plain:
nobody other than Islington was doing any of these activities. Islington may
not have been doing all of them, but that, in my experience in dealing with these
TUPE cases, is not uncommon. When a canteen changes hands, the work may
decline because people may not want to go to the new provider; it does not
change the character of the service being provided or of the activities being
provided just because on accepting the change not all of the activities can be
carried out.
35.
The Judge was the sole finder of facts in this case. It was his job to
match up the pre and post‑service change activities, and, as I pointed
out in Ward Hadaway, it is not the job of the EAT to second‑guess
this. The assessment is a question of law, but the findings as to what was
going on after 1 April 2011 is for the Judge as a matter of fact.
The five points argued by Ms Joffe as being activities that were not
carried on are either expressly mentioned by the Judge or are insignificant
enough to not call into question his finding that there was a service provision
change. The Judge made a careful assessment of the law having made the
relevant findings. He did give sufficiently detailed attention to the
activities as he found them to be, and there is no way in which Ms Joffe
can successfully argue that his Judgment was one that no reasonable Judge could
come to or was based upon no evidence.
36.
So, for all those reasons, I would very much like to thank all three counsel
and their teams; this appeal is dismissed.
