“(a) There cannot be a TUPE transfer because the activities carried on by the First Respondent after the transfer date were fundamentally different; (b) As at1 July 2018 the First Respondent intended the activities to be carried out for a short term duration only, until March 2019, when the First Respondent anticipated that the CCTV services would be merged with the London Borough of Wandsworth ('LBW').” by the First Respondent after the transfer date were fundamentally carried out for a short term duration only, until March 2019, when the First Respondent anticipated that the CCTV services would be merged with the London Borough of Wandsworth ('LBW').”
“I consider that the amended grounds of appeal (which set out succinctly the points which the Appellant, Claimant below and who represented herself) sought to advance. They are reasonably arguable and should, in my view, be determined at a full hearing”
“The Appellant thereby seeks to do away with the clarity established by the amended Grounds of Appeal and put in its place two lengthy documents that are lacking in the clarity required for a Notice of Appeal. The application was refused by the Registrar by email dated25 November 2021 . The Appellant seeks to challenge that decision. She asserts the amended Grounds of Appeal do not properly reflect the grounds permitted to proceed and those that she wishes to argue. She refers to brief extracts of her original Grounds of Appeal and Skeleton Argument without clearly identifying what additional errors of law she seeks to assert. Had the appellant had any concerns about the amended Grounds of Appeal, she should have raised them immediately upon receipt of the sealed Order with the amended grounds attached. The amended grounds were approved by HHJ Katherine Tucker; so clearly are the grounds that she permitted to proceed. The Respondent has responded on the basis of the amended Grounds of Appeal and started to prepare the matter for hearing. It would not be in accordance with the overriding objective for the concise amended Notice of Appeal to be replaced by lengthy documents that are lacking in clarity. The appeal against the Registrar's direction is refused.”
“1. The ET erred in its approach as to whether there was a relevant transfer under regulation 3(1)(b) TUPE 2006 by failing to clearly identify the relevant activity and/or adopting too narrow a view of the relevant activity (see Johnson Controls Ltd v Campbell [2012] 2 WLUK 411 and Metropolitan Resources Ltd v Churchill Dulwich Ltd (In Liquidation) [2009] I.R.L.R 700) since: - (a) The activity pre and post transfer was essentially the same: operators were carrying out CCTV monitoring (see paragraph 29 of the Judgment); (b) Mr Free expected and directed Careline staff to proactively monitor CCTV. In an email dated16 August 2018 to staff, he stated: “…When not engaged on an urgent call I expect staff to answer the radios or monitor the CCTV 24/7” (c) Mr Free expected staff to proactively answer radios, an activity carried out by the Appellant pre-alleged transfer (p/34 of the ET1); (d) There was no difference in location or any suggestion of change in equipment when carrying out the task of CCTV monitoring. (e) The fact that the Careline staff performed some additional duty or function does not negate the application of reg 3(1)(b): see Churchill above. 2. In short, the ET's approach to the categorisation and identification of the ‘activities’ concerned, and the comparison between activities carried out prior to and subsequent to the change of providers was erroneous and too pedantic, The Salvation Army Trustee Company v Coventry Cyrenians Limited[2017] IRLR 410 applied. 3. When reaching its conclusion that activities were fundamentally different, the ET appears to have taken into consideration the alleged service provision change itself: see paragraph 29, which states: “It was a fundamentally different service given that the First Respondent no longer engaged a company to provide CCTV operatives…''. The ET misdirected itself by considering the alleged SPC as evidence of the change in activity itself. 4. The ET failed to identify what if any case law was considered and/or analysed before reaching its conclusion; see paragraph 26 of the Judgment. 5. The ET further failed to ask itself whether, on the facts, the conditions set out in reg.3(3) were satisfied; see Churchill above.”
“12. The issue was explored with the parties during this hearing and Counsel for the First Respondent said that he could not see why LBW should be added as a party and added that if the Claimant won her claim, the First Respondent would not attempt to deflect blame or liability on to LBW but that the First Respondent would pay any compensation ordered by the Tribunal. Leaving liability aside, the only relevance of the First Respondent’s combined services agreement with LBW was because the First Respondent’s secondary defence was that there was not a TUPE transfer because the activities would only be carried out for a short term duration, until the merger of the services with LBW in March 2019. The Tribunal’s attention was drawn to documents in the bundle which showed that the decision to merge the CCTV services with LBW was made in June 2018 and intended to come into effect in March 2019. The Claimant was therefore asked what value there would be in adding LBW in light of what had been said and she could not give a good reason.”
“…Her job, and that of the other CCTV operator provided by the Second Respondent was to operate and monitor surveillance cameras situated around the borough in order to safeguard the public, prevent and detect crime. CCTV footage was used by police to solve crimes and no doubt also used as evidence to prosecute offenders. She would respond to safety related calls from the Police, Clubs, Pubs, Venues and various shops on the high street.”
“The Tribunal was also able to get a good picture of what the Claimant did from the logs which were completed by CCTV operatives which recorded what they did during their shift. From looking at those logs, it was clear that there was a great deal of what was referred to during the hearing as “proactive monitoring”; this meant looking at each camera, checking that it was functioning correctly and monitoring what was going on in the area where the particular camera was located.”
“23. Upon the expiry of the contract, the First Respondent decided to divert the funding that had historically paid for the services of the Second Respondent and this meant that from1 July 2018 the First Respondent chose not to employ full time CCTV operatives to provide the same service that the Second Respondent had done between 6pm-6am. 24. The Tribunal finds that this fundamentally changed the whole character of the service provided by the Second Respondent. Without the full time operatives provided by the Second Respondent, any monitoring of the CCTV cameras was left to the Careline staff. They were already overloaded with Careline duties and therefore the extent to which they were physically able to perform CCTV monitoring was minimal. Mr Free said in evidence that their Careline duties took up 95% of their time. It is clear from the email at page 218 of the bundle that they weren’t providing the service because Mr Free was receiving complaints about it. They were forced to provide only reactive support service as when needed. We heard that as Careline staff were on calls all of the time, they could not simply go over to the CCTV desk even if the the phones were ringing. Calls went unanswered. The Tribunal accepts that with only one member of staff on Careline in the evenings, the monitoring service provided by the First Respondent was minimal. Whatever the rights or wrongs of the decision taken by the First Respondent, the demand on budgets are such that the money for the service disappeared to pay for something else. The Tribunal does not accept that there was any deliberate action on the First Respondent’s part to do this or not fund the service to avoid TUPE applying.”
“29. At a high level, the First Respondent was continuing to provide a CCTV monitoring service, but this was the extent of any similarity. It was a fundamentally different service given that the First Respondent no longer engaged a company to provide CCTV operatives and for all the reasons made clear in the above findings of fact. Not only did the amount of monitoring significantly reduce but the type of monitoring changed considerably. Cameras were not checked and there was no routine surveillance of areas in which the cameras were situated. Calls from the police and public remained unanswered as this was no longer a service that the First Respondent could routinely provide. Proactive support, which played such a large part of the Claimant’s role, had disappeared over night. The above picture is supported by the logs and there is a stark difference in the activities logged pre and post30 June 2018 .”
“3.—(1) These Regulations apply to— ... (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. … (2A) References in paragraph 1(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out. (3) The conditions referred to in paragraph (1)(b) are that— (a) 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 the 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; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use.”
“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.”
“We would add that the identification of “activity” is critical in many cases. The case before us is an example of that. An activity may be more than the sum of the tasks that are performed in respect of that activity, but a Tribunal must be careful to ensure that it does not take so narrow a view of that which “activity” consists of, in the case before it, as to forget that the context in which it decides “activity” is the context in which it is ever likely that employees' continued employment will be affected. If for instance the activity performed by a given employee is after a service provision change to be performed by two or three employees in the transferee or, in a 3(1)(b)(iii) situation, by the client itself, then it may well be that the approach of the Tribunal should recognise that the same activity may well be carried on, though it is performed now by three people rather than by the one person who earlier performed it. These questions are, however, fundamentally questions of fact and degree.”
“…The identification of the activity is, as the cases have held, a question of fact and degree. It being a question of fact and degree, the question for us therefore on appeal is whether the Judge was entitled to come to that factual conclusion. He would not be entitled to do so if he approached the issue of identification of the activity by some wrong approach, nor would he be entitled to reach that conclusion if it were perverse to do so. As to the approach, he was asking himself the question that was proposed by HHJ Burke QC in the Metropolitan case at paragraph 37 by asking whether the alleged transferee, in this case the client, was performing essentially the same activity as that of the alleged transferor, in this case Johnson Controls. The underlying approach was therefore undoubtedly correct.”
“…In our view, the Tribunal, faced with the question, which is its initial and critical question as identified by Kimberley, has to decide what an activity is. Mr Brittenden, who appears for UKAEA, argues that Mr Rose's analysis is an over-analysis where it seeks to separate the how from the what. He points to the fact that small differences quantitatively between a service provided before a putative transfer and that occurring after can be critical, as they were in the Enterprise Management case, when the description adopted by the Tribunal was 15 per cent of the work no longer being carried on after as it had been before. We accept that identifying what an activity is involves an holistic assessment by the Tribunal. The Tribunal is trusted to make that assessment. Its evaluation will be alert to possibilities of manipulation, but it is not simply to be decided by enumerating tasks and identifying whether the majority of those tasks quantitatively is the same as the majority was prior to the putative transfer.”
“… equally, it cannot be a matter of simply asking whether activities carrying the same label continue after the alleged transfer. In the factual assessment which the tribunal requires to carry out, it seems plain that they must consider not only the character and types of activities carried out but also quantity. A substantial change in the amount of the particular activity that the client requires could, we consider, show that the post transfer activity is not the same as it was pre transfer. Thus, in the OCS Group case, the tribunal found that the contract post transfer was for a substantially reduced service which was materially different and TUPE did not apply.”
“Equally, where the volume of work undergoes a substantial diminution, it may lead to the conclusion that the activities being carried out are not essentially the same as before, even if the same categories of work apply. As HHJ Burke QC observed, the assessment is a matter of both fact and degree.”
“…On the one hand, they should not be defined at such a level of generality that they do not really describe the specific activities at all. Thus it would be wrong to characterise a fully catered canteen as merely the provision of food to staff (see OCS Group at paragraph 22). On the other hand, the definition should be holistic, having regard to the evidence in the round, avoiding too narrow a focus in deciding what the activities were (see Arch Initiatives at paragraph 38). A pedantic and excessively detailed definition of 'activities' would risk defeating the purpose of the SPC provisions.”
“This area of law has been the subject of lots of litigation on the interpretation of the TUPE Regulations and the Tribunal’s attention was drawn to a number of cases by Counsel for the First Respondent which the Tribunal has considered in reaching its decision.”
“Whilst I appreciate that losing the night-time CCTV operator has potentially raised demand on the night duty staff it is not an excuse to fail to answer the radios or respond to police requests. I have had several complaints from the police that, particularly during the night, the radios are not responded to and I would wish to remind you that the general job designation is Careline & CCTV operator. Obviously Careline calls will take precedence but when not engaged on an urgent Careline or out of hours call I expect staff to answer the radios or monitor the CCTV 24/7. I have requested that I am informed by the police of any future issues and trust you will ensure we regain our reputation as a valued partner in the borough strategy against crime and disorder.”