Mr J Horsley and Mr A Scarisbrick v HSSMI Ltd and Loughborough University: 3201991/2018 and 3202434/2018
JUDGMENT
The judgment of the Employment Tribunal is that: - There was a service provision change as defined in Regulation 3 (b) (iii) Transfer of Undertakings (Protection of Employment) Regulations 2006 when the 2nd Respondent took the work of the DETC inhouse on 30 April 2018. The Tribunal has listed a Final Hearing to determine whether the Claimants were part of the 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 and the remaining issues in this matter.REASONS
[1]This hearing was listed as an open preliminary hearing to determine whether there was a transfer of an undertaking from the First Respondent to the Second Respondent. Lay Members had been appointed to this Tribunal but they were released when it became evident that the only matter before the Tribunal was whether a TUPE transfer occurred.[2]It was agreed that there is common ground between the Claimant’s case and that of Mr Scarisbrick, 3202434/2018, in relation to whether there had been a TUPE transfer. Mr Scarisbrick’s solicitors indicated in a letter dated 18 January 2019 to the Tribunal, copied to the Respondents and to Mr Horsley, that Mr Scarisbrick was content to be bound by the decision of the Tribunal on the TUPE transfer issue. Evidence In this Hearing the Tribunal had a lever arch of documents running to just over 200 pages. The witnesses all produced typed witness statements. The Tribunal heard live evidence from the Claimant, John Horsley on his behalf. For the First Respondent, the Tribunal heard from Dr Axel Bindel, its Executive Director. For the Second Respondent, the witnesses were Michael Caine, Professor of Sports Technology and Innovation and Steve Rothberg, Professor of Vibration Engineering, Fellow of the Institute of Mechanical Engineers and Pro-Vice Chancellor (Research).Evidence
[3]The Claimant added some further documents to the bundle of documents at the hearing.[4]The Tribunal apologises to the parties for the delay in the promulgation of this judgment and reasons. This was due to pressure of work on the judge.Law
[5]The Transfer of Undertakings (Protection of Employment) Regulations 2006 apply to a transfer of an undertaking, business or part of an undertaking and to a service provision change. A service provision change is defined in Regulations 3 (b)(i) to (iii) as a situation in which: – “(i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”);(ii) activities cease to be carried out by a 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 another person (“a subsequent contractor”) on the client’s behalf; or(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.” Regulation 3(3) stipulates that: “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. These regulations are stated to apply to public and private undertakings engaged in economic activities, whether or not they are operating for gain. Regulation 3(6) confirms that a relevant transfer may be affected by a series of two or more transactions; and it may take place whether or not any property is transferred to the transferee by the transferor.[6]Unless an employee of the transferor makes it clear that he is not interested in transferring, Regulation 4 states that a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer. Instead, any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.[7]Regulation 4(2) confirms that on the completion of the relevant transfer, all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee. Any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee. Regulation 4(3) confirms that any reference in the preceding paragraph to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, when a transfer is affected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions. Regulation 4(7) confirms that if an employee objects to the transfer, it will operate the terminate his contract of employment although he would not be treated as having been dismissed by the transferor.[8]The First Respondent referred the Tribunal to the case of The Salvation Army Trustee Company v Bahl and others UKEAT 012016/RN. In that case the judge was held to have taken a correct approach, steering a correct course between the twin dangers of over generalisation and pedantry when coming to the decision that the activities before and after a change in contractor, were fundamentally the same. HH Judge Richardson held that the words in Regulation 3(1)(b), including the word activities, are to be given their ordinary everyday meaning. In the context of Regulation 3(2), the activities must be defined in a common sense and pragmatic way. On the one hand, they shall not be defined at a level of generality that did not really describe the specific activities at all. On the other hand, the definition should be holistic, having regard to the evidence in a round and avoiding too narrow a focus in deciding what the activities were. A pedantic and excessive detailed definition of activities would risk defeating the purpose of the service provision change provisions.[9]The First Respondent also referred the Tribunal to the case of OCS Group UK Ltd v Jones and Ciliza 2009 AER (D) 138 (Sep). In that case the EAT confirmed (endorsing the approach taken by Langstaff J in Kimberley Group Housing Ltd v Hambley & Ors [2008] IRLR 682) that the approach to the Regulations is to firstly consider the relevant activities under Regulation 3(1)(b), then to consider whether those activities had, indeed, been transferred over and, lastly, to consider whether the conditions in Regulation 3(3)(a) have been satisfied. It was also held that even if the activities are carried out in a different way by the new contractor, they will still need to be broadly the same in order for there to be a service provision change. Ansell J referred to an unreported case from the Scottish EAT, Mathieson and another v United News Shops Ltd EAT/554/94 in which Burke J stated that the Tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as is 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.[10]The Respondent also referred the Tribunal to the case of Metropolitan Resources Ltd v(1) Churchill Dulwich Ltd – in liquidation(2) Martin Cambridge and others [2009] IRLR 700. In that case, HH Judge Burke QC stated there was no need for formal list of factors which the Tribunal must consider before it can make a decision as to whether there was or was not a relevant transfer, in contrast to the provision in Regulation 3(1)(a) where the Cheeseman approach is required. The service provision change, is a wholly new statutory concept. It is not defined in terms of economic entity or other concepts under the 1981 TUPE Regulations. The circumstances in which a service provision change is established are comprehensively and clearly set out in Regulation 3(1)(b) and Regulation 3(3). There is no need for an Employment Tribunal to adopt a purposive construction, as opposed to a straightforward and common-sense application of relevant statutory words to the individual circumstances before it. There is no need for a multi-factorial approach. In a case in which Regulation 3(1)(b) is relied upon, the Employment Tribunal should ask itself simply whether, on the facts, one of the three situations set out in Regulation 3(1)(b) existed and whether the conditions set out in Regulation 3(3) are satisfied. The statutory words require the employment tribunal to concentrate upon relevant activities. Tribunals would inevitably be faced 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 way the former performs and the latter performed the relevant tasks. The Judge held that it cannot, however, have been the intention that the new concept of service provision change should not apply because of some minor differences between the nature of the task carried on, or in the way in which they are performed.[11]The Tribunal was referred to the case of Johnson Controls Ltd v Campbell and UK Atomic Energy Authority UKEAT/0041/12/JOJ in which the principles set out above were endorsed.[12]From the evidence, and the documents presented to the Tribunal, the Tribunal made the following findings of fact.Findings of fact
[13]The Tribunal has endeavoured to only make findings of fact related to the issue to be determined by it.[14]The Digital Engineering and Test Centre (DETC) was established in 2015 with funding from a proposal submitted to the government Department for Business, Innovation and Skills (BIS) which later became BEIS (Department for Business, Energy and Industrial Strategy). DETC was funded by BIS as a Spoke of the Advanced Propulsion Centre UK Ltd (APC) with the specific purpose of seeking new digital technologies and bringing them into use within the UK automotive engineering centre (vehicle manufacturers and their UK supply chain) to reduce the time and cost of engineering vehicles and their subsistence by 50%.[15]The DETC project was proposed jointly by the High Speed Sustainable Manufacturing Institute (HSSMI) (the First Respondent) and Loughborough University (the second Respondent) from its London campus on the Stratford Olympic Park, with letters of support from key UK automotive industry partners, most of whom would go on to form the DETC Advisory Board including Ford, McLaren, Ricardo, AVL, Cosworth, Autodesk, Bath University and others.[16]The Tribunal had a copy of the letter from BIS dated 5 May 2015 to Mr Rothberg setting out the conditions on which it was agreeing to fund the project. The department stated that the purpose of the funding was to have a DETC that would work with the APC UK Ltd and the London Spoke to improve the economic performance of the UK automotive sector by becoming a globally recognised centre for digital engineering and test and providing underpinning capability in digital engineering and test to the Automotive Council Strategic Technologies. BIS undertook to fund the project with a grant of £6m for the period from 5 May 2015 to 13 September 2020 to cover the running cost of the DETC in accordance with the detailed proposal that the Respondents submitted to the department.[17]In the offer letter it stated that the First Respondent was to source at least 60% of the net eligible cost of the project from industry. The Respondents were to agree with APC UK Ltd and BIS a set of key performance indicators for the project. They were also to grant APC UK Ltd access to the project to assist BIS in monitoring it.[18]The letter outlined that the DETC was to provide quarterly reports to BIS to request payments of the grant. Those quarterly reports would focus on the project’s progress including the insulation of any necessary plant and machinery, any change in nature or scale of the project, any change in the ownership of or beneficial interest in any asset provided for the project and an up to date estimate of the project cost.[19]BIS retained the right to inspect the project at any time or to require further information.[20]At the same time as the DETC was being set up, BIS also agreed to fund the Advanced Propulsion Centre (APC). APC was a large funding machine tasked with funding UK-based technology development. It was also tasked to support the automotive sector in other ways, including through a network of universities, each of which is recognised as a UK centre of excellence for research and industrial engagement on, in particular, clean vehicle-based technologies i.e. Newcastle for electric motors, Nottingham for power electronics, Bath and Brighton for internal combustion engines, Warwick for high voltage batteries and Loughborough for digital technologies. The APC HQ was at the centre of the work with the universities, each of which was known as a Spoke. Loughborough University hosted the Digital Spoke as well as DETC.Findings of fact
[1]The DETC project was based at the Loughborough University London campus on the Stratford Olympic Park. The centre was supposed to be a collaborative project, with Loughborough University as the lead organisation and HSSMI as a lead delivery partner. The centre was to focus on two main themes - product and processes. The centre was to complement the existing UK landscape and engage with existing centres in related areas. It was not to displace activities from other areas in the country but to add value and support existing initiatives. It was also to seek collaboration with key partners.[2]The evidence at the hearing was that BEIS continues to fund the project to date and that the project’s aims and objectives as outlined above had not changed.[3]The 1st Respondent was to operate DETC on a day-to-day basis with oversight and assistance being provided by a Management Board and an Advisory Board, which contained members from both Respondents and 3rd party organisations. The Advisory Board was made up of industry leaders and its purpose was to advise on the technical and strategic direction of the project. It would meet quarterly to discuss the performance of the program. Members of the advisory board were people with influence within the industry and included individuals from Ford, McLaren, Ricardo, AVL, Cosworth, Autodesk, Bath University and others. The Advisory Board’s remit was purely advisory and not executive.[4]DETC’s Management Board comprised representatives from both Respondents. Initially, Steve Rothberg from the university was Chair of the Management Board. Mr Caine became Chair in 2016. The Management Board would advise and instruct the Claimant on actions that it wanted the centre to implement. Initially the Management Board met monthly and then it met six weekly. It was the Claimant’s evidence that towards the end and before his dismissal, the Board rarely met.[5]Effectively, the Second Respondent held the grant from BIS and liaised with BIS. The Second Respondent contracted with the First Respondent to deliver the project on its behalf. It was the First Respondent who therefore recruited staff to deliver DETC. The Claimant’s contract of employment was with the First Respondent. It employed 12 members of staff in DETC. The Claimant was appointed as programme director, starting in January 2016. He had 2 managers who reported to him – AS and KR; an admin member of staff and 8 engineers. The Claimant was line managed by Dr Axel Bindel, who at the time was the First Respondent’s technical officer. Mr Bindel reported in to the First Respondent’s Chief Executive, Dr Leslie Lee. In practice, the Claimant would meet with Mr Lee and Mr Bindel to discuss DETC strategy. Objectives and bonuses would be set/approved by Mr Bindel.[6]The Claimant’s original job description in the bundle shows that the vision for DETC was for it to become a sustainable centre of excellence. It was the Claimant’s evidence that during the period from January 2016 to April 2018, he succeeded in meeting all of his personal objectives and the KPIs (Key Performance Indicators) set by BIS. The DETC was on track to meeting the KPIs set by BIS and meeting its general aims. It was enabling PhD level research across the APC Spokes and conducting collaborative industrial R&D to bring digital technology in to automotive engineering. The Claimant’s evidence that he performed well in his role was unchallenged and Mr Bindel’s evidence was that the Claimant was paid all his bonuses.[7]It was the Claimant’s evidence that in 2016, the DETC was working with seven universities, was involved in collaborative projects and supported research and PhD programs - creating a centre of excellence that would be known for its expertise and be available for industry to tap in to. He was clear that some of the activities happened at the London campus and the balance happened across the Spoke – out into industrial locations. Mr Bindel agreed in his evidence that there was an affiliation network and that there were collaborative R&D projects sponsored through DETC.[8]DETC had eight engineers. Some engineers reported to KR and the others reported to AS. The Claimant managed KR and AS and reported on the matrix and KPIs to the First Respondent. It was also his role to develop and maintain the networks across industry and academia. His evidence was that most of the work was being done at the academic and industrial locations and not just at the offices at Stratford which operated as a hub. The Claimant confirmed in evidence that DETC were planning to support the funding of manufacturing PhDs at university.[9]In evidence, Mr Caine agreed with the Claimant that there had been discussions about the Claimant’s ideas for taking the project forward and that there had been a realisation during those discussions that there were opportunities for more academic engagement in the project. DETC had not managed to mobilise the level of academic engagement that it could do or that was possible.[10]It was the Claimant’s evidence that during the time that he worked at DETC the strategy for the Centre had to evolve in order to keep the project relevant to industry and deliver best value for the taxpayer. The Claimant’s live evidence was that this did happen but that he had been frustrated by the lack of direction from the advisory board and had spoken to the chair about this.[11]At the start of DTEC, the Claimant’s recollection was it was apparent that if it did 50% product processes and manufacturing processes, it would be stepping on the First Respondent’s toes as it was already doing similar work. Because of that, the Advisory and Management Boards made a conscious decision to steer the DETC away from manufacturing processes as there was plenty of that type of support out there in the industry. From then on, although there had to be a bit of an overlap between manufacturing and DETC’s fare, it remained only a minor part of what it did. For that reason, although KR, one of the managers who reported to the Claimant, was still employed in charge of manufacturing, the reality was that he was more involved in digital, immersive, and other emerging technologies, which had to be brought in to facilitate automated engineering. The Claimant did not agree that DETC engaged in design or manufacturing in any significant way although it remained a small part of what it did. His statement that DETC did not design a hardware product was unchallenged in the hearing.[12]In December 2017 the project’s funders and sponsors decided that it wanted DETC (and possibly the Digital Spoke) to deliver a statement project which would be known as the’ Digital Vehicle’ (DV). As the Claimant admitted in his witness statement, progress on the project in the early part of 2018 was slow. So, with the agreement of Mr Bindel and Mr Lee, the Claimant engaged an external, third party consultant, which had a good record in complex bid construction and experience of working with some of the large automotive collaborators in the past; to assist in putting the bid together.[13]DETC got the First Respondent’s agreement to the engagement of the external consultant company but it later became clear that some of the key Advisory Board members were unhappy with the use of a third-party consultant as they believed that this could jeopardise the confidentiality of the information and put the success of the bid at risk. Between January and March 2018, DETC joined forces with the aerospace bid team to set about constructing a bid into the Industrial Strategy Challenge funding for a ‘Digital Sector Deal’ (DV). This is one of the projects that continues to be worked on by DETC’s successor.[14]On 22 March, a regular DETC Advisory Board meeting was due to be held. The Claimant had asked three key Advisory Board members to meet with him and the First Respondent’s Chief Executive, before the main meeting, to discuss the way forward for the Digital Vehicle bid and to discuss their perceived discomfort with the consultancy the Claimant had appointed.[15]At the start of the pre-meeting, the Claimant was surprised to be told by the Advisory Board members that they were not happy with the direction that DTEC was taking, that it might need new focus and that the DV project was in danger of losing their support as they were unhappy with the way it was progressing. The Board meeting initiated a four-week root and branch review of the DETC.[16]The Claimant was informed that BEIS and APC supported the need for a review. The Chief Executive of the First Respondent and the Claimant were not invited to take part in the review process. During the period of the review the Claimant met with Mr Bindel and Mr Lee and put forward his ideas as to how the project could move forward. He also emailed the Board to offer his ideas for how the Centre could develop. He did not receive a response.[17]Mr Caine’s evidence was that prior to this Advisory Board meeting, concerns were raised by industry partners to the project that the structure was not working correctly and that DETC was not achieving its objectives, especially in terms of gaining traction and credibility in the industry. It was felt that given the way in which DETC was operating it was acting in isolation in proposing projects and solutions that did not necessarily meet the requirements of the industry. The industry partners considered that industry was not engaged effectively with DETC.[18]The senior working group conducted the review and reported on 25 April 2018. The object of the review process was stated in the document at page 184 in the bundle as: To define the strategy - the key objectives for the DETC (the why) in a succinct manner, by assessing automotive sector requirements over the next 10 years; to state the high level, core deliverables that industry, academia and government expect from the DETC (the what); to identify a preferred operating model that would underpin the delivery of these objectives against the planned timeline (the how); and to clarify the timeline over which the DETC will be expected to realise the deliverables (the when). The review group would then try to summarise their findings, check the output with key stakeholders and to agree an action plan to bring the above into reality as quickly and effectively as possible. The document then went on to discuss each of those points in detail.[19]Mr Caine’s evidence was that the Advisory Board was very clear that the localised delivery structure that DETC had been operating from Stratford up to then was not optimal for delivering of the vision of the industry for the future.[20]The members of the industry who made up the Advisory Board also represented the organisations who effectively funded DETC. Mr Rothberg’s evidence was that they were influential as without them the DETC would not have existed as there would not have been a grant from BEIS. His evidence was that the project had to listen to the steer given by the Advisory Board. Mr Caine’s evidence was that the Board made recommendations on the conclusion of the review which he had to consider otherwise the whole centre and its work could be put in jeopardy. His evidence was that the change in dynamic and the way in which the review team/Advisory Board wanted the centre run, was set by the review team and the Respondents had to quickly catch up with them. The Advisory Board and review team were concerned about the centre’s need to outsource expertise to construct the funding bid for the Digital Vehicle. Mr Caine’s evidence was that the Advisory Board did not see that as a good solution and it gave them cause for concern. The review felt that the information, funding bid and related matters should have been kept in-house. There was also a desire for the DETC to have academic leadership so that it could interact with universities and economic institutions as well as industry. Mr Caine agreed that the Claimant did engage with academic partners when he was Programme Director of the DETC but as he was not an academic, this did not come as natural to him as the review board thought that it would come to an academic.[21]Also, the review group believed that the process of writing the complex bid for the next stage of the DETC was difficult for the Claimant and that someone with a more academic background would have been able to do that more easily.[22]The proposal from the review group was that DETC and the Digital Spoke would move into the 2nd Respondent to put them more in line with the other APC spokes and that the University would take over delivery of DETC from the 1st Respondent. The engineers were to remain part of the operation. The minutes of the meeting record that the implications of the recommendations were made clear to those present, including a desire to review and revise the leadership and management structure of the DETC. The slides used for the review presentation confirmed that although DETC had delivered against it KPIs, those KPIs were not aligned with the DETC Advisory Board’s expectations. It was noted that DETC had tapped into ‘Digital’ capabilities across the UK and that the challenge now was to turn those into action and to develop the definition of the ‘Digital Vehicle’. Also, that this was an opportunity to step up the 2nd Respondent’s involvement in the project including recruitment of academics to work in it and tapping into on-site resources such as using interns, recruiting graduates etc.[23]At the meeting it was noted that the Claimant would be personally impacted by this change. However, the Board expressed its unanimous support for the proposals. It was noted that the 1st Respondent now needed to initiate an HR process and that its employees who worked on the project would be informed and supported accordingly.[24]In a document entitled ‘key recommendations and outcomes’ it was stated that the 2nd Respondent had indicated that it was ready to step forward and secure the long-term future of DETC, which will operate like other APC university-led Spokes. The 2nd Respondent confirmed its commitment to employing additional academic and management resources to lead the activities of the DETC into the future. It intended to fund key academic (Professorial) posts to assure the sustainability of the Digital Spoke. The review recommended that the management structure of DETC should be changed. Mr Caine’s evidence was that he understood that the recommendation was that the new project would have a CEO in the new structure who would be a very senior person with skills and experience in strategic thinking who had automotive industry credibility – ‘an industry ‘big hitter’ – who would promote the Spoke and develop and implement a strategy for industry-led grant writing and project delivery. It would be different from the existing structure and the position of CEO would be very different from that of Programme Director. A CEO would be a strategic role whereas in his opinion, the Programme Director’s role was only operational. It was expected that the leadership team for the spoke, i.e. the CEO, CTO (Chief Technical Officer) which should be an industrial person; and at least one Professor, would be based at the 2nd Respondent’s campus in London. The 1st Respondent was expected to initiate an HR process that would allow the existing DETC project to be ‘ramped down’.[25]The document stated that there would be no change to the formal metrics agreed with BEIS and that the Board had been given assurances by Ashley Roberts from BEIS that the funding for the work done by DETC and that funding for the APC Digital Spoke would remain in place. Funding from the BEIS grant would continue to be used to fund the CEO and CTO leadership roles in the medium-term but it was expected that the leadership posts would eventually be funded from collaborative projects and from sustainable revenue generating activities. The project would continue to have the same broad aims and objectives.[26]The review suggested that a retired product line director from Ford would lead the preparation and submission of the Digital Vehicle project bid. He was named in the report. The Tribunal was not told that this person was also an academic and it is unlikely seeing as he was coming from industry. He was to act as the interim lead for the Spoke to cover the transition period. There was a proposal to review all current projects being undertaken by DETC with the outcome of this review expected to determine which projects would be continued. It was anticipated that all the industry co-funded projects would continue but the intention was to restructure DETC.[27]The 1st Respondent’s position is that it did not take part in the review process or in the decision-making process in deciding how the project would be run once it was taken in-house by the 2nd Respondent.[28]Once the proposals for the future of the project was outlined, the 1st Respondent understood that there was to be a radical change in direction for the project and that its role within the DETC would no longer be necessary, give that there was to be a new academic focus.[29]The person chosen to run the DV project from Ford - took up his position in DETC in April, during the review process and set about trying to pull the DV collaborative project together. The Claimant worked closely with him and assisted him in conducting a review of the DV and DETC from the inside.[30]On 1 May the 1st Respondent advised the Claimant, AS and KR that it would be best for them not to come to work until further notice although they would need to attend meetings to discuss options for their future employment. Also on that day, the DETC staff were informed of the decisions taken by the Management and Advisory Boards to move DETC into the University.[31]The 1st Respondent conducted meetings with the Claimant which were effectively part of a redundancy consultation process. Before meeting with him on 3 May the 1st Respondent contacted the 2nd Respondent to see if there were any positions open to him as they would be running the DETC from then on. On 3 May the Claimant met with Mr Lee. Beverley Stalton the 1st Respondent’s HR manager was also present. The Claimant was informed that his post of Programme Director was at risk of redundancy. Mr Lee told the Claimant that the 1st Respondent wanted to redeploy him, if possible and they discussed possible options. The Claimant confirmed that he would be prepared to relocate to Birmingham for a suitable role. Formal redundancy consultation began with Ms Stalton on 10 May 2018.[32]On 10 May the 1st Respondent wrote to the Claimant to notify him that it was looking for suitable alternative roles for him. There were no suitable alternative roles.[33]At subsequent meetings in May with Mr Lee, Mr Caine and Ms Stalton, the Claimant was told that the Respondents’ position was that TUPE would not apply to his position. He was told that the 2nd Respondent had not requested it. The Claimant was told that the Advisory Board had asked and wanted fresh management for the project. Mr Caine’s email on page 224 also in May, confirmed that the 2nd Respondent considered that it was up to the 1st Respondent to mention TUPE and that as it had not done so, the 2nd Respondent was simply complying with the HR process enacted by the 1st Respondent. Mr Caine also indicated that he agreed with the 1st Respondent’s position. He considered that as the Claimant’s role was no longer required as it was not considered to be ‘fit for purpose’ it would not make sense to TUPE a role that had been deemed redundant to the new structure.[34]From discussions with the 2nd Respondent prior to the review, the Claimant got the impression that the 2nd Respondent wanted him inside the University – with or without DETC. However, once the review was published all approaches by the Claimant were unsuccessful and he was told that there were no positions for him.[35]The 1st Respondent wrote to the Claimant on 23 May following a meeting on 17 May, to confirm that his role was redundant. The Claimant’s last day of employment was to be 31 July 2018. The Respondent wrote to him setting out all how his final redundancy payment was calculated.[36]The Claimant raised the issue of TUPE with the 1st Respondent and asked whether it applied. He raised this in meetings and wrote a letter on 30 May 2018. Solicitors acting on the Claimant’s behalf wrote to the 2nd Respondent about TUPE in August 2018. The 2nd Respondent were clear in communications between HR and managers that any liability under TUPE should rest with the 1st Respondent.[37]DETC initially became known as the Digital Engineering and Test Programme (DETP). A new CEO, Bradley Yorke-Briggs was appointed in the Autumn of 2018. Shortly after that the project’s name changed again to the IDE – the Institute for Digital Engineering. The Claimant’s evidence was that the IDE was described on its website as follows: - “the IDE UK is tasked with architecting and managing a national portfolio of projects that fundamentally drive the creation and adoption of digital technology and science across the UK automotive sector, in order to improve global competitiveness. It is a major component of the delivery mechanism for the APC funded Loughborough Spoke in Digital Engineering”. It was the Claimant’s case that these were the same or were similar to the activities being undertaken by DETC while he was programme director. It was also his case that whereas he was told that the reason for him not being TUPE transferred into the Second Respondent was because the project would become more academically focussed that was not reflected in the description set out above.[38]In a comparison between his job description and that of Mr Yorke-Briggs, the Claimant showed that the main tasks were similar. In his job description he was to lead the planning, management and monitoring of DETC’s financial objectives and contractual outputs. The CEO of DETP was to ensure good management of the project budgets, with ultimate responsibility for the overall budget. The Claimant’s job description stated that he was required to have ‘outstanding communication, interpersonal and negotiating skills commensurate with working at a senior level’. The new CEO’s job description stated that the postholder needed to be able to engage at the most senior technical level in diverse organisations across the UK-DETP network and communicate effectively within the university and other stakeholders. The Claimant was required to have a ‘good understanding of the research and engineering from both and academic and commercial perspective’ whereas the new CEO post at DETP required the postholder to be able to ‘engage actively in research collaborations with colleagues within the University bringing an industry perspective’. Lastly, the Claimant’s job description required him to be able to manage partner contributions to the project, help formulate projects and generate match funding. The CEO of the new DETP was required to ‘secure matched funding to satisfy the requirement of the BEIS grant for the future obligations’. Those elements of the two job descriptions are very similar to each other.[39]IDE is affiliated to the School of Automotive, Aeronautical, Chemical and Materials Engineering (AACME) within the 2nd Respondent.[40]Mr Caine’s witness statement states that the proposal was to change DETC into a different form that would have a strategic role with the activities it supported distributed amongst academic and industry partners nationally rather than being carried out centrally within DETC. The 2nd Respondent would continue to carry out its own research but this would be directed at specific issues identified by industry. It was envisaged that the CEO, given her/his industry knowledge and experience would understand the issues and drivers in the industry and work alongside the professorial Spoke lead to ensure the relevance in the academic activity. The CEO would be able to demonstrate her/his understanding to industry partners. The new structure was supposed to ensure that the Spoke leadership was alert to priorities, concerns and operating constraints faced by industry partners. It was also proposed to move away from manufacturing focussed projects, thus enabling resources to be directed towards design oriented projects. It would be more focussed on assisting industry partners to develop their ideas/concepts and encourage and facilitate partnership and projects between industry partners.[41]In his witness statement, Mr Bindel stated that the 1st Respondent’s position was that it was not required to consult with the Claimant as the TUPE Regulations did not apply because DETC was radically changing from a practical service to an academic service which meant that 50% of the Claimant’s role would no longer remain.[42]Both Respondents indicated in the hearing that they had not taken legal or HR advice on the relevance of TUPE to the situation before implementing the recommendations of the review Group.[43]Mr Bindel’s evidence at the hearing was that 2 of the engineers employed by the 1st Respondent as part of DETC were transferred to the 2nd Respondent’s employment. Of the remaining 6 engineers, 3 remained in the 1st Respondent’s employment, 1 left the 1st Respondent’s employment and 2 may have been interns and therefore not employees and it was not clear what happened to them.[44]Mr Rothberg’s evidence was that the Claimant’s role ceased to exist. Although the IDE continues to work with the PhDs and other projects from the DETC are still being done, his evidence was that those would not be done again. He stated that the fact that DETC had been outside of the University in another organisation had been a barrier to his colleagues engaging with it in the way he knew was possible and as they do now.[45]It was his evidence that DETC had been a technical resource of people and activities, a centre of excellence whereas following the changes implemented in May 2018, that centre of excellence no longer exists. IDE is not trying to be a centre of excellence but instead is trying to identify through its engagements in industry where excellence is needed and bring together people who have the solutions with those who need them. Its purpose is to establish and develop strong strategic partnerships across digital, academic, industry and government partners to maximise delivery effectiveness of the spoke.[46]He confirmed that the CEO was still based at the 2nd Respondent’s London site and that two of the engineers who transferred are supporting the CEO in project manager roles. He also confirmed that IDE is the entity that delivers on the grant from BEIS and continues to seek to deliver on the original aims. IDE is within the Spoke.[47]An email dated 8 November 2018 Mr Rothwell confirmed that IDS has a project management function but will not have a research function. Although academic leadership, teaching and research were described as key components of the new CEO role for IDE, the Respondent confirmed that Mr Bradley Yorke-Biggs is not an academic but does have industry experience. The role of leading the Digital Engineering Spoke has been passed to Professor Martin Passmore who is an academic.[48]The 2nd Respondent has not recruited to the post of CTO (Chief Technical Officer). The Management Board was disbanded as there is only the 2nd Respondent running the project. The 1st Respondent is no longer involved. The Advisory Board from the industry remains and performs a similar function to what it did in relation to the DETC. Applying law to facts[49]The first issue for the Tribunal is to describe the relevant activities formerly carried on by DETC.[50]It is clear to this Tribunal that the overall aims and objectives of the DETC are the same as the newly formed IDE project operated by the 2nd Respondent. BEIS has agreed to continue its funding and the aims and objectives set out in the original funding letter continue to be the aims and objectives of the new project. That has not changed. This project is and was tasked with working to become a globally recognised centre for digital engineering and test and providing underpinning capability in digital engineering and test to the Automotive Council Strategic Technologies.[51]The Tribunal must go further and define the actual activities carried out by the DETC. Most of the evidence referred to above set out in the findings above refer to the principles behind DETC and the reworking of those for IDE. There was very little evidence in the hearing about the actual activities carried out by either entity. From the limited evidence that was given, this Tribunal concludes that DETC worked with 7 universities with PhD programmes and co-founded research projects. The Claimant and his team enabled PhD level research and collaborative industrial R&D with the aim of bringing Digital Technology into Automotive Engineering. DETC was a joint industry-academic centre of excellence.[52]The Claimant and his team developed and used virtual engineering tools and techniques to accelerate the development, test and manufacture of automotive propulsion systems. In addition to the work with universities and the PhD students, DETC also offered services to industry. I accepted the Claimant’s evidence that DETC did not design or manufacture anything inhouse but used its skills and expertise to look at ways of improving organisations’ own manufacturing processes. If his evidence was incorrect it would have been easy for either or both Respondents to provide evidence to challenge him on it but that did not happen in the hearing. The Tribunal also accepts the Claimant’s case which Mr Bindel agreed with, that although some activities occurred in Stratford, DETC did a lot of work in its affiliate network and that there were collaborative R&D projects sponsored through DETC. As already stated, DETC worked with 7 universities sponsoring PhD programmes.[53]DETC was funded by BIS to seek out new digital technologies and bring them into use within the UK Automotive Engineering sector. That is likely to be a developing and fast-changing world in which to operate. It is likely that the work conducted by DETC would need to be regularly reviewed and changed to keep up with emerging technology and the pace at which national/international competitors discovered and developed the same technologies. In my judgment that was something that the Claimant was alive to while being Programme Director. The work that was done by DETC changed during his tenure. If DETC did manufacturing at the start of its life in 2016 it is highly unlikely that this was its main activity from 2017.[54]Another impetus for the review also came from the advisory board’s unhappiness with the Claimant’s decision to outsource some of the work on the bid for the Digital Vehicle.[55]The new project was physically moved from Stratford into the 2nd Respondent’s campus at Loughborough.[56]The next question for the Tribunal was what are the activities of IDE?[57]From the information on its website the Tribunal concludes that IDE is tasked with architecting and managing a national portfolio of projects that fundamentally drive the creation and adoption of digital technology and science across the UK automotive sector, in order to improve global competitiveness. It is a major component of the delivery mechanism for the APC funded Loughborough Spoke in Digital Engineering. It continues to fund the PhDs across the universities that DETC funded.[58]IDE has not become an academic entity although it does have academic involvement in the form of Professor Passmore who is effectively charged with working on the Digital Vehicle with other industries such as aerospace. This was the work the Claimant/DETC was working on when it appointed the consultancy to assist in formulating a bid.[59]DETC and the Digital Spoke were two different operations that worked alongside each other and were both taken into the 2nd Respondent at the same time.[60]All industry co-funded projects continue in IDE.[61]I conclude that IDE is required to coordinate and support a portfolio of projects across the nation that drive the creation and adoption of digital technology and science across the UK automotive sector. Those projects are with academic and commercial partners. That was Mr Rothberg’s evidence. That is similar to the way in which DETC operated and the activities in which it was engaged.[62]Although it was stated that the CEO’s role would be more strategic than operational, the differences between the job descriptions are semantic rather than real. They are both charged with managing partner contributions to the project, to satisfy the requirements of the BEIS grant for the future and to help formulate projects that can secure match funding. They both have to engage in the research collaborations with colleagues, both within the University and across the network of institutions that DETC/IDE worked/works with. The Claimant did work with colleagues at the 2nd Respondent which is how he came to believe that it was possible for him to secure employment there after the decision was taken to close DETC. In the end there was no suitable work there for him but he was not unknown to the 2nd Respondent. What was said was that working with academics may not have come naturally to him as it would to another academic. It was not said that he had not worked with or was unable to work with academics. The Claimant performed and Mr Yorke-Gibbs performs a mixture of operational and strategic tasks in running this project.[63]I conclude that DETC did not do straightforward manufacturing but was involved in collaborative projects and supported research and PhD programs. These are similar to the activities that the IDE is presently engaged in. It is this Tribunal’s judgment that some of the evidence given by Mr Caine and Mr Rothberg from the 2nd Respondent was about their vision for the future of IDE rather than what it actually does at present. They would like it to grow into an academic-led project that uses interns, employs graduates and links parts of industry together while thinking on the future of Digital capabilities in the motor industry. Although those may be the ideas for the future of the project as the work develops, it is this Tribunal’s assessment that at present, IDE continues to do broadly the same activities as were done by DETC before it.[64]IDE is no longer described as a ‘centre of excellence’ whereas the DETC was described in that way. Does that show a difference in activities? It is this Tribunal’s conclusion that in reality the IDE continues to be a hub for coordinating and advancing the work across different projects and inhouse with the specific purpose of seeking new digital technologies and bringing them into use within the UK automotive engineering centre. The DETC worked and IDE works to enable PhD- level research and collaborative industrial R&D to bring digital technology into UK automotive engineering. DETC coordinated and supported research across seven universities in the UK and had a nationwide spread of collaborative industrial R&D to bring digital into automotive aimed at improving the sector’s competitiveness and delivering the APC Digital Spoke.[65]It is this Tribunal’s judgment that the activities that had been carried on at DETC are now carried out by IDE. Although different words were used to describe them by the witnesses from the 2nd Respondent the activities were the same and had the same objectives and aims. The project will continue to develop as technology develops and the needs of the automotive sector changes. It is possible that at some point in the future IDE will branch out from the automotive sector and into other sectors and cease to fund PhDs. It is also possible that will continue to do those things. The comparison that I am required to make is between the activities carried out by DETC when it existed and the activities presently conducted by IDE.[66]It is this Tribunal’s judgment that the activities carried out by IDE within the 2nd Respondent are broadly the same as those that had been carried out by DETC at the time of its closure in April 2018 within the 1st Respondent. The activities are fundamentally and essentially the same.[67]It is this Tribunal’s judgment that this was a TUPE transfer under Regulation 3(b)(iii) of the Transfer of Undertakings (Protection of Employment) Regulations 2016.[68]The advisory board’s review concluded that DETC’s activities should be brought in-house to the 2nd Respondent, that an academic should be brought in to help construct the Digital Vehicle bid and the management structure should be changed. The review recommendations appear to have conflated the desire to move the project to the next stage in its development with the need to change the structure of the project; mostly because the Board was unhappy with the Claimant’s decision to engage consultants to assist with the drafting of the funding bid for the Digital Vehicle but also because there is a vision to change the nature of the work that the project does. Whether the Claimant’s role disappeared at the time of the transfer is not a matter that is to be addressed by this Tribunal. That is a matter that will be addressed at the second hearing in this matter after hearing further evidence and submissions. The first issue for the Tribunal conducting the next hearing to determine is whether the Claimant and Mr Scarisbrick were assigned to the organised grouping of resources that was subject to the relevant transfer. This Tribunal did not have submissions on this issue.[69]Those issues will therefore be addressed at the final hearing. The Tribunal will list this for a three-day hearing and send a Notice of Hearing to the parties in due course. If the time estimate or the set dates need to be changed, the parties should write to the Tribunal immediately.