Mr C Warren and Others v Broadland Guarding Services Ltd and Mil-Ken Travel Ltd: 3313469/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 3313469/2023
Between
Mr C Warren and OthersClaimantBroadland Guarding Services Ltd and Mil-Ken Travel LtdRespondent
Before
Employment Judge GrahamDate 21 October 2025
JUDGMENT
[1]It is the decision of the Employment Tribunal that there was a relevant transfer (service provision change) under Regulation 3(1)(b)(ii) of the Transfer of Undertakings Protection of Employment Regulations 2006.[2]The date of the relevant transfer was 1 August 2023.[3]All the Claimants were assigned to the transferring activity. Approved by: JUDGMENT having been sent to the parties on 19 November 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The preliminary issue to be decided in this hearing is whether there was a relevant transfer (service provision change) under Regulation 3(1)(b)(ii) of the Transfer of Undertakings Protection of Employment Regulation 2006.[2]The hearing of 20 June 2025 was adjourned in order for the First Respondent to resolve an issue about a contractual document in the bundle as it was unclear if it was part of a different agreement. The matter proceeded on 20 and 21 October 2025.[3]I received two witness statements from Gary Verducci (Projects Manager) for the First Respondent. I also received a witness statement from Deborah Woods (Administrator), two from Jon Miller (Director) and one from Sharon Parr (a Claimant) for the Second Respondent.[4]The issues were as follows: 1. Transfer of Undertakings (Protection of Employment) Regulations 20061.1 Was there a relevant transfer in accordance with the Transfer of Undertakings Regulations 2006?1.2 Were the Claimants employees working under a contract of employment with either the transferor or the transferee either before or after the relevant transfer?1.3 Were the Claimants considered an organised grouping of employees immediately before the alleged transfer date?1.4 Were the Claimants carrying out activities on behalf of the client?1.5 Immediately before the alleged transfer, did the client intend that the activities will be carried out by the transferee, other than in connection with a single specific event or task of short-term duration.1.6 Did the activities carried out in the Claimants’ employment cease to be carried out by the transferor on the client’s behalf and instead, are carried out by another party on the client’s behalf?1.7 Are the activities carried out by the other party following the alleged transfer fundamentally the same as the activities carried out by the person who has ceased to carry them out?1.8 Are the activities carried out by the other party following the alleged transfer on behalf of the same client as before the alleged transfer?
Findings of fact
[5]In or around 2003, the First Respondent was awarded a contract by the US Department of Defence Education Activity “DoDEA” (hereafter referred to as the client) for the monitoring and ensuring safety of students during transportation to and from school. Specifically the contract was for Bus Security Attendants to ride on buses provided to students in commute areas to both RAF Lakenheath and RAF Feltwell. The First Respondent had another contract for RAF Alconbury which is separate.[6]The Claimants in this case worked 100% of their time on the RAF Lakenheath and RAF Feltwell routes, although very exceptionally they could be posted temporarily to routes for RAF Alconbury to cover sickness absence of colleagues.[7]During the 20 years in which the First Respondent contracted with the client there had been some gradual reduction in the number of Bus Security Attendants required by the client.[8]This case concerns events from 8 June 2023 when the client informed the First Respondent of the orders for the next year. The First Respondent noted the number of bus runs had dropped from 10,000 to 540 and it queried this with the client. The client responded the same day to say they were aware of an Agency initiative that reduces the number of Bus Security Attendants required. The reduction of circa 9,500 runs related to RAF Lakenheath and RAF Feltwell only.[9]At the same time the Second Respondent was awarded a contract for the provision of Bus Monitors on bus routes for school children to the same bases which it had never provided before. The date of this new contract was 1 August 2023. The First Respondent tells me that the activities are fundamentally the same, thus there was a service provision change, meaning that there was a TUPE transfer. The Second Respondent tells me that there was not.[10]On 3 July 2023 the First Respondent contacted the client and said it understood that the part of the contract it had lost had been awarded to another supplier, and it asked for details of the new supplier for TUPE purposes. The client replied that the new supplier of the services was the Second Respondent and contact details were provided.[11]Following a dispute between the Respondents about whether TUPE applied, the client’s Chief of the Transportation Procurement Branch wrote to the First Respondent and advised that the client does not involve itself in the TUPE process as it should be between the Respondents. Moreover, the client stated: “The Bus Security Attendant labor category is no longer a requirement of this contract and was replaced with a new role, Bus Monitors. Bus Security Attendants were intended primarily for security on the buses whereas Bus Monitors are intended for ensuring safety on the buses (i.e. assisting students entering/exiting buses and riding safely as needed, assisting drivers with misconduct). Although there are similarities regarding safety in the roles, the two requirements between the BSAs and Bus Monitors differs in their tasks and objectives.”[12]Turning back to August 2023, after the client informed the First Respondent of the drastically reduced number of runs, the First Respondent continued to pay the Claimants until 20 August 2023, after the new contract with the Second Respondent started, however this is not a factor in my determination. Whereas Mr Verducci tells me that a former member of staff Mr Longhurst told him he had been informed by Mr Miller, a director of the Second Respondent, that he had jobs for Bus Monitors but he was paying his staff less than Bus Security Attendants, I place no weight on this as my focus is on the roles being performed by the staff before and after 1 August 2023.[13]Likewise, whereas four former members of the First Respondent’s staff have since joined the Second Respondent as Bus Monitors, and a fifth as a Bus Driver, again this is of limited relevance. My focus remains on the roles being performed for the client before and after 1 August 2023. It is this assessment which lies at the crux of the task I must undertake. Contractual documentation[14]As part of the tender documentation, the client includes a document called a Performance for Work Statement. I have a historic copy provided by the First Respondent, and a copy provided by the Second Respondent for the 2023 contract. The following are taken from the general information and scope of work sections.[15]Paragraph 1.2 of the Work Statement is nearly identical in both documents and it provides that the purpose of the contract is to provide student transportation services, that safety is of the highest priority, and the contractor shall perform all services in a safe, prudent and professional manner, accepting full and sole responsibility for the prompt and proper delivery of services, and maintain good order of passengers at all times. Further it provides that transportation services for students must be completed in the safest and most efficient manner possible following all host nation laws and military installation regulations. There are very slight variations in wording between the two documents, but these do not amount to any difference in substance.[16]Paragraph 1.3 of the Work Statement provided to the First Respondent provides: “The contractor shall provide all personnel including drivers, safety attendants, enhance security attendants, supervision, services, supplies, and/or equipment necessary to perform student transportation services at Lakenheath. Contracted services must be in compliance with all of the DoDEA and Host Nation requirements for student transportation.”[17]Paragraph 1.3 of the Work Statement provided to the Second Respondent is almost identical with the obvious difference being the removal of the words Safety Attendants and Security Attendants, and the inclusion of the word Bus Monitor. Whereas I note the change in language, my focus will be on the work being performed, not the job title. Moreover, leaving contractual documentation aside, I am looking at the reality of what work was being performed.[18]I have been referred to the four objectives of contract as set out in both Work Statements. The objectives appear almost identical save for minor differences in where some of the objectives or tasks appear and are described.[19]The Work Statement provided to the Second Respondent which defines a Bus Security Attendant as “an individual possessing specialised security training assigned to the bus, its route or run. Security attendants will be hired and managed under a separate DoDEA-Europe contract with a commercial security company.” The role of Safety Attendant/Bus Monitor is defined as “When ordered by the COR, the Contractor shall provide a safety attendant for routes or runs to assist Kindergarten through grade 2 students in entering and exiting the vehicle and riding safely.” I should record that the Work Statement provided by the First Respondent refers to Safety Attendant not Bus Monitor, however the text is the same. I again remind myself that the contractual documentation is of limited relevance, my focus is on what work was actually undertaken. The witness evidence[20]The parties have provided evidence on the functions undertaken by Bus Security Attendants and Bus Monitors. Mr Verducci has given evidence on behalf of the First Respondent, and he is a former Bus Security Attendant supervisor, trainer, and company training manager. Whereas Mr Verducci tells me that Bus Security Attendants were referred to as Bus Monitors as the client did not want to worry students and parents, my focus is on what they did, not how they were described.[21]During July 2023 Mr Verducci performed his own analysis of the contractual documents and produced his own table setting out the overlap between the two roles. He identified 22 aspects of the roles and made a comparison, and in short his evidence is that the roles are fundamentally the same, and that it was just the job titles which have changed. This is a very helpful assessment, and whereas I bear in mind it was produced for the First Respondent’s benefit, nevertheless the Second Respondent has been able to review it and to provide its own comments at the material time and in these proceedings. I have been greatly assisted by this table and have reviewed what each party has been able to tell me. I have kept in mind that there may be other factors beyond those 22 identified by Mr Verducci, and I have in no way closed my mind to any other factors which might appear to me to be relevant.[22]Mr Miller, a director, of the Second Respondent has given evidence on its behalf and he argues that the roles are distinct and he places considerable weight on both the contractual documentation, but also he says there is a distinction between the security aspects of the Bus Security Attendant role and the safety aspects of the Bus Monitor role. Mr Miller has accepted that a small part of his witness statement was incorrect with respect to some training on evacuations and crimes against children which he said Bus Monitors did not undertake, however it was put to him in cross examination, which he agreed with, that the client expressed in contractual documents that it expected Bus Monitors to have this training.[23]Ms Woods was previously a Bus Security Attendant and a Bus Monitor, and much of her evidence is dedicated to emphasising the security aspects of the former role, but she said very little about the Bus Monitor role which she says was limited to keeping an eye on children, ensuring their seat belts were done up, getting children to school safely, dealing with misbehaviour and making sure Kindergarten children were handed to the correct parent. Ms Woods has acknowledged in her oral evidence that there were some aspects of the Bus Monitor role which she carried out whilst a Bus Security Attendant although she says technically it was not her role.[24]Finally, evidence was provided by Ms Parr, a Claimant in these proceedings, where she says she was required to have an SIA licence and could not work on the bus without it. Ms Parr was best placed to tell me the differences between the two roles however she did not do so. The work undertaken[25]I will start with the areas of agreement between the parties. It is not disputed that Bus Security Attendants were required to perform a search of the bus, and this is not something required of Bus Monitors.[26]Likewise, there is no dispute that both roles required host nation clearance, and Enhanced DBS check, and a first aid licence, nor is it disputed that the work was during term time, and both the Bus Security Attendant and Bus Monitor could prepare student welfare reports if there was something to report.[27]I do not find that there was any difference in the routes covered nor the destinations which were to RAF Lakenheath and RAF Feltwell. RAF Alconbury was a separate contract which does not form part of this claim.[28]The Second Respondent has argued that Bus Security Attendants were required to have an SIA licence and could not work on the bus without it. In this regard I prefer the evidence of the First Respondent, it was not a contractual requirement from the client to have such a licence, rather it was a requirement of the First Respondent for all staff to have the licence and staff would be moved to administrative duties until it was renewed as was the case with Mrs Parr. Safety[29]I understood that there could be up to 80 students on a bus at a time, although this was variable. Many routes run in built up urbanised areas, a substantial number of routes begin and end in rural areas travelling through villages and towns on secondary roads. I did have some difficulty with the Second Respondent’s evidence which argued that the Bus Monitor’s role was limited to checking seat belts, dealing with misbehaviour, and escorting students off the bus or across the road, whereas it argued that Bus Security Attendants were limited to external threats and could not get involved with matters arising on the bus as they could not be looking forwards and backwards at the same time. This appeared rather implausible to me, not least because the only other adult on the bus was the driver and it seemed unlikely to me that the Bus Security Attendant would not get involved but would wait for the Bus Driver to stop the bus on the type of routes described and then deal with it themselves. It did not seem credible that an adult responsible for getting students safely to their destination would look the other way if there was illness or misbehaviour on the bus.[30]Rather, the oral evidence of Mrs Woods for the Second Respondent, which I found to be honest and reliable, was that Bus Security Attendants would on occasion get involved in dealing with misbehaviour, albeit severe misbehaviour, like a fight; they would get involved if a student was unwell, and she would on occasion help students get off the bus or cross the road, although she says it was technically not part of her role. This was consistent with Mr Verducci’s evidence for the First Respondent where he suggested that the Bus Security Attendant could get involved in these things.[31]I also find that both roles would prepare student issue reports if the need arose. Security[32]With respect to security, the children of US personnel are regarded as high risk targets, and the client made it clear to both Respondents that their safety was a priority. The evidence of the Second Respondent was that there were no security aspects of the Bus Monitor role, however I found this to be incorrect. Whereas the Bus Security Attendants are looking out of the bus for threats and suspicious activity, this was also something which the Bus Monitors are expected to report on as well if they observed anything of that nature and this was something which the client required Bus Monitors to be trained on. Similarly the Second Respondent argued that the Bus Monitors would have no knowledge of safe havens and suggested this was the sole jurisdiction of Bus Security Attendants, however it was the client’s requirement expressed in the contractual documentation for both Bus Drivers and Bus Monitors to be trained on these.[33]In addition I have noted the contents of the client’s requirement for training in 2023, after the putative transfer, which records that the purpose was to provide school bus drivers and bus monitors with a working level awareness of the current threat and local basic anti-terrorism and crime practices and techniques tailored to student transportation with three objectives. This included promoting collaboration between Bus Drivers and Bus Monitors to provide a continuous safe and secure environment during the entire student transportation process; to equip personnel with essential security related knowledge and skills; and empower Bus Monitors to perform student transportation security tasks in addition to the student transportation safety responsibilities.[34]Whereas the Second Respondent disputes that the purpose of that training was to enable Bus Monitors to take over the security aspects from Bus Security Attendants, it is clear to me having read that passage in particular, that was clearly the client’s intention, evidenced by the removal of Bus Security Attendants on the routes to RAF Lakenheath and RAF Feltwell.[35]It was agreed that Bus Security Attendants need to report on delays to the journey, but this was simply to let the school or parents know that the bus would be late. This did not appear to have a particular security significance to it, and it was not argued before me that a Bus Monitor would not or could not do the same. Training[36]It is also not disputed that both roles required terrorism and security awareness training and Base Rule training, however the dispute between the Respondent is about the amount of training, with the Second Respondent arguing that Bus Monitors required half the amount.[37]I have been referred to the Performance Work Statement for the tender for that training states that the purpose of the security training is to: “provide school bus drivers and bus monitors a working level awareness of the current threat and local basic anti-terrorism and crime practices and techniques tailored to student transportation in the host nation” and that one of the three objectives of the training was to “empower bus monitors to perform student transportation Security tasks in addition to their student transportation safety responsibilities.”[38]The mandatory training modules include an introduction to terrorism, crimes against children, vehicle inspection, surveillance detection and attack recognition, incident reporting, and emergency response. I conclude from the fact of requiring Bus Monitors to be trained on these matters that they would be expected to perform them together with Bus Drivers.[39]The evidence of Mr Verducci, which I accept, is that he had previously provided the security training to Bus Security Attendants, and following the putative transfer, the Second Respondent was asked by the client to provide training on the same topics to the Bus Monitors of the Second Respondent which the First Respondent declined and it was provided by an unnamed third party.[40]Mr Miller for the Second Respondent argues that the length of the security training for Bus Monitors is at a base level and half that which was provided to Bus Security Attendants. I have exercised some caution with this because whereas the client’s Performance Work Statement refers to three to four hours being provided, the First Respondent refers me to the contract for the Bus Monitors which indicates that eight hours of security training will be provided. Mr Miller tells me that is a mistake and it was intended to mean safety and security training, however this is the Second Respondent’s own document, and it was not addressed in their witness statements. Nevertheless, I find that Bus Monitors would have received training on the same topics as Bus Security Attendants, but the training to these Attendants was in more detail than that provided to the Monitors, and this was because the First Respondent’s training covered the same ground but provided practical examples as well as the theory.[41]In his witness statement Mr Miller gave evidence that Bus Monitors did not have training on student evacuations and crimes against children, however he has accepted in his oral evidence before me that it was a requirement of the client that they should do so. Accordingly, I do not find that this was a difference between the two roles.[42]I find that both roles had Base Rules Training which was specific to the role.[43]I do find that the Bus Security Attendants would have some training outside of term time which was one difference with Bus Monitors who did not, however I do not find that a great deal turns on the timing of the training. Law[44]Regulation 3 provides: A relevant transfer 3.—(1) These Regulations apply to—(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; Regulation 3(1)(b)(ii) provides:(b) a service provision change, that is a situation in which— … (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; …[45]A structured approach is required. As held in Enterprise Management Services v Connect-Up Ltd [2012] IRLR 190, EAT: i. The Tribunal should identify the relevant activities carried out by the original contractor. ii. The Tribunal should consider whether the activities carried out by the subsequent contractor are fundamentally or essentially the same as those carried out by the original contractor. Minor differences may properly be disregarded. This is essentially a question of fact and degree for the Tribunal. iii. Even where the activities remain essentially the same before and after the putative transfer date as performed by the original and subsequent contractors, an SPC will only take place if the following conditions are met: a) there is an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; b) the client intends that the transferee, post-SPC, will not carry out the activities in connection with a single event of short-term duration; c) the activities are not wholly or mainly the supply of goods (rather than services) for the client’s use. iv. Finally, the Employment Tribunal must decide whether each claimant was assigned to the organised grouping of employees.[46]When considering whether there was an organised grouping of employees it is not sufficient merely to show that a group of employees in fact mostly worked on tasks for a particular client. Rather the employees should be organised by reference to the requirements of the client and did not naturally apply to a combination of circumstances whereby shift patterns meant that a group of employees mighty practice be found working on tasks which benefited a particular client – Eddie Stobart Ltd v Moreman [2012] ICR 219.[47]I am required to apply a common sense and pragmatic approach when considering the issue of the activities carried out before and after the alleged transfer – Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] ICR 1380. Where there are additional duties carried out by the new provider, or where there are minor differences in the nature of the tasks carried out, it not automatically follow that the substance of the activity is no longer essentially the same as that carried out by the predecessor. 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 transferor.[48]The word activities should be given their ordinary and straight forward meaning. Moreover, the relevant activities may prove to be a subset of the activities carried out by the transferor – Arch Initiatives v Greater Manchester NHS Trust [2016] ICR 607.[49]When considering the activities there will need to be consideration of the similarities in the nature of those activities and also the scope of volume carried out by the alleged new service provider.[50]I should therefore take a holistic approach considering all the evidence in the round which is neither too general or too specific or granular. A pedantic or excessively detailed approach is to be avoided as it would defeat the purpose of the protections – Salvation Army Trustee Co v Bahi [2017] IRLR 410.[51]It may be relevant in some cases to consider whether there has been a material shift in the method of the service the manner of the provision – Nottingham Healthcare NHS Trust v Hamshaw and others UKEAT/0037/11 or to consider whether this represents a wholly different operation – OCS Group UK Ltd v Jones and another UKEAT/0038/09.[52]A diminution in the volume of work being undertaken may be a relevant factor to consider when deciding whether the relevant activities continue to be carried out following an alleged transfer – Department for Education v Huke and other UKEAT/0080/12[53]My assessment must be focussed on what work was being done before and after the alleged service provision change. Whether this was work which the client was bound to give the contractor, or whether the contractor was bound to accept it, are not relevant factors – Lorne Stewart Plc Hyde UKEAT/0408/12. Submissions[54]The First Respondent argues that the work performed by its Bus Security Attendants and the Second Respondent’s Bus Monitors are fundamentally identical and comprise of essentially monitoring and ensuring the safety of students on US DoDEA school buses at RAF Lakenheath and RAF Feltwell. It says that the different job titles are immaterial. It says that the Claimants belonged to an organised grouping immediately before 1 August 2023 whose principal purpose was carrying out this monitoring/safety work for the DoDEA client.[55]The First Respondent says that Bus Security Attendants and Bus Monitors received the same or fundamentally similar training, including security awareness, anti-terror practices, bus inspections, surveillance detection and emergency response, and knowledge of safe havens. The First Respondent argues the activities were not limited to security but involved a range of student safety duties too.[56]The First Respondent also seeks to minimise any differences relied upon the Second Respondent, and says it is not relevant that Bus Security Attendants had SIA licences and carried certain equipment as SIA licensing was not required by DoDEA, and the equipment does not change the nature of the activities performed. The First Respondent also asserts that the view of the client DoDEA is not determinative and that it is for this Tribunal to make its own factual assessment.[57]The Second Respondent argues that there was not a TUPE transfer, however some of the staff were later directly recruited. It argues that the Bus Security Attendant role was materially different from the Bus Monitor role and as a result, the activities did not remain fundamentally the same, so there was no TUPE service provision change. The Second Respondent draws to my attention that the First Respondent continued to provide Bus Security Attendant services after 1 August 2023, albeit at a drastically reduced scale; it says that If the same contractor continues providing the activity, no service provision change can arise; and this was in reality a redundancy situation as the drastic reduction in Bus Security Attendant activity is evidence of a diminished need for employees.[58]The Second Respondent argues that the Claimants could constitute an organised grouping but it is for the First Respondent to prove that they were deliberately organised to serve the DoDEA contract, rather than merely allocated through happenstance or shift patterns. It says that the First Respondent’s pleadings do not confirm whether Bus Security Attendants spent most/all time on DoDEA work.[59]As to whether the DoDEA client intended the activities to be carried out by the Second Respondent, it says that the answer to that is no, and it relies upon correspondence from the client confirming the BSA role was to continue with the First Respondent but on a much-reduced scale and there was no intention that the Second Respondent would take over those BSA activities.[60]As to whether the BSA activities ceased with the First Respondent and were instead out by the Second Respondent, it says no and that they carried on but at it very substantially reduced level.[61]The Second Respondent focusses very heavily on what it says are extensive differences between the two roles, and reliance is placed on the DoDEA statement that the roles differ in objectives and tasks with BSAs primarily focussed on security whereas BMs are focussed on safety and student conduct; the contractual documentation showing BSAs under defined labour category whereas the BMs do not; the difference in training between 3 days it says for BSAs and 3 hours for BMs.[62]The Second Respondent also relies upon the following differences: Bus Security Attendants Bus Monitors First Respondent Second Respondent At depot by 06:00; bus searches with Only on bus during actual run mirror/torch Must call supervisor to confirm route clear No such requirement Substantial off-term training required No such requirement Do not do base-to-base runs Do base-to-base runs Student evacuation training None Security-related training on crimes against None children Explicit security duties No security duties SIA licence required Not required Must know DoDEA routes Not required Must report on every run Report incidents only[63]The Second Respondent submits that the above amounts to a different ethos, and further it says that a material shift in the nature of a service can prevent there being a Service Provision Change, and it refers me to previous case law on going from a full catering service to a salad bar and that they are superficially related tasks but operationally different.[64]Whereas the Second Respondent conceded that the Bus Monitors work for the same client, it says that this is insufficient because the nature of the activities differs fundamentally.[65]In conclusion the Second Respondent says the activities must be fundamentally the same, not simply loosely similar; a common sense but not overly generalised approach is required; a Tribunal must consider the volume, ethos and scope of changes when deciding whether the activities continue; and a material shift in purpose (from security to safety) prevents there being a Service Provision Change, and here it says that there was a material shift in ethos and a 96.6% reduction in activity volume.[66]Finally, the Second Respondent further asserts that there has been an absence of training documentation provided by the First Respondent; and the fact that the First Respondent continued to pay the Claimants after 1 August 2023 evidences that they remained employees of the First Respondent. Conclusions and decision[67]I will address the list of issues in turn. 1.2 Were the Claimants employees working under a contract of employment with either the transferor or the transferee either before or after the relevant transfer?[68]The Claimants were working under a contract of employment with the First Respondent prior to 1 August 2023. 1.3 Were the Claimants considered an organised grouping of employees immediately before the alleged transfer date?[69]This has not been disputed, and I find that they were. They spent all of their time on the activities which I will come on to. 1.4 Were the Claimants carrying out activities on behalf of the client?[70]I find that the Claimants were carrying out activities on behalf of the client, and these activities were monitoring and ensuring the safety of students commuting to and from DoDEA schools on school buses, specifically to RAF Lakenheath and RAF Feltwell. 1.5 Immediately before the alleged transfer, did the client intend that the activities will be carried out by the transferee, other than in connection with a single specific event or task of short-term duration.[71]This is a matter of dispute, however I find that it did as demonstrated in the email form the client of 3 July 2023 where it indicated that the new supplier would be the Second Respondent. Whereas the client appeared to step back from that in the email of 15 August 2023 asserting that the two roles were different, this is not consistent with the Performance Work Statements issued to the Second Respondent which clearly describe security functions falling to the Bus Monitors. 1.6 Did the activities carried out in the Claimants’ employment cease to be carried out by the transferor on the client’s behalf and instead, are carried out by another party on the client’s behalf?[72]The answer to that question is yes and for the reasons I have already given and will address below. 1.7 Are the activities carried out by the other party following the alleged transfer fundamentally the same as the activities carried out by the person who has ceased to carry them out?[73]Herein lies the crux of the dispute between the parties. My task was relatively straightforward and required me to look at the reality of what was being done before and after the putative transfer. The provision of Performance Work Statements on the contracts themselves and on training, has been of some assistance but it has tended to cloud the essence of the task before me. The labels given by the client and members of the public are not at all determinative, neither is the view of the client, and the contractual documentation is of some assistance but it cannot displace the reality of what was being done before and after the putative transfer.[74]I have found that the Bus Security Attendants’ role was essentially as described, ensuring the safety of students on the bus routes to their destinations. This included looking out for security threats and reporting on them, but also dealing with safety issues, whether that be checking seat belts, dealing with misbehaviour, dealing with sickness, and then helping students off the bus or across the road if needed, as well as reporting on misbehaviour. None of that changed after 1 August 2023. Those activities remained the same. Mr Verducci’s evidence on this was not challenged to any degree, and Mrs Woods gave evidence which was largely consistent – as a Bus Security Attendant she had undertaken these tasks and she had performed them as a Bus Monitor.[75]Some tasks were taken away, for example inspecting the bus, and this passed to the Bus Driver, but the fact that some tasks changed in how they were done or some were removed, does not mean that the activities were not fundamentally the same. No-one has argued that they were identical, and they need not be in any event, I am looking at whether they were fundamentally the same.[76]Some of the tasks were done differently, for example the reports are only needed from a Bus Monitor if an issue arises as opposed to a daily report being required by Bus Security Attendants irrespective of occurrences.[77]A great deal of time and debate was spent in the hearing on training requirements, including the time spent and when it happened, however the fundamental issue is this - the Bus Monitors were trained on the same topics as the Bus Security Attendants, or it was the client’s intention that they would be. These included matters which can properly be described as security related, such as terrorism and threats. It was the expressed intention of the client that the Bus Monitors would be empowered to perform student transportation security tasks in addition to their student transportation safety responsibilities. This was entirely consistent with the training which was expected to be provided to them after 1 August 2023, and which included evacuation and crimes against children.[78]I have given consideration to the amount of time being spent on the training, and I acknowledge that Bus Monitors received less hours of training on these topics when compared to Bus Security Attendants, but the fact remains they were given the training on the same topics so that they would have a working knowledge of terrorism and security threats. The only difference appeared to be that the First Respondent gave their staff practical examples in addition to the theory element.[79]I have already determined that the issue of the SIA licence was irrelevant, it was not a contractual requirement of the client, it was an internal requirement of the First Respondent.[80]Accordingly, taking a common sense, pragmatic and a holistic view, I find that the activities carried out by the Bus Monitors for the Second Respondent were fundamentally and essentially the same as those carried out by the Bus Security Attendants on behalf of the First Respondent. 1.8 Are the activities carried out by the other party following the alleged transfer on behalf of the same client as before the alleged transfer?[81]The answer to that question is yes, it is the same client.[82]In conclusion I therefore find that there was a relevant transfer under Regulation 3(1)(b)(ii) TUPE on 1 August 2023 and for the avoidance of doubt, each Claimant was assigned to that organised grouping of employees. Approved by:
Findings of fact
[1]By way of oral decision on 21 October 2025 the Tribunal determined that there had been a relevant transfer (service provision change) from the First to the Second Respondent on 1 August 2023, and that all the Claimants were transferred to the assigned activity.[2]The judgment was sent to the parties on 19 November 2025.[3]Written reasons were requested by the Second Respondent on 3 December 2025. The Second Respondent also applied for a reconsideration at the same time.[4]There was a delay in referring the application to me. The parties will appreciate that there is a backlog in matters being referred to judges at present, for which I apologise. In any event, I produced written reasons on 19 January 2026 which I understand have not yet been sent to the parties, again likely due to the backlog within the Tribunal system. I have today, on 31 January 2026, considered the Second Respondent’s application for a reconsideration, which I have refused. The reasons for doing so are set out below.[5]The Second Respondent’s application is a clear and a thorough one, helpfully set out over 21 paragraphs.[6]The essence of the application is that the First Respondent had withheld a relevant document on training (and allegedly other material); the Tribunal allegedly fell into error by considering a document which post-dated the transfer; the First Respondent continued to pay the Claimants post transfer; and there is repeated argument that there are considerable differences between the roles (and objectives) of Bus Security Attendant and Bus Monitors by reference to the Performance Work Statements and other evidence. The Second Respondent argues, as it did in the preliminary hearing, that the First Respondent’s requirement for a SIA licence was not some form of gold plating, but was a requirement. Law[7]Rule 3 of the Employment Tribunal Rules of Procedure 2024 provide as follows: Overriding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing,(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction. (4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.[8]Part 12 of the Rules provides: Reconsideration of judgments Principles 68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. Reconsideration by the Tribunal on its own initiative 71. Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).[9]The Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 observed (paragraph 21) that the discretion to act in the interests of justice is not open ended and should be exercised in a principled way, and it emphasised the importance of finality.[10]In Ebury Partners UK Ltd v Acton Davis [2023] IRLR 486 it was held: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.” [24][11]Similarly in Trimble v Supertravel Ltd [1982] ICR 440 the court emphasised that alleged errors of law fall to be corrected by the appeal tribunal. Moreover, in Newcastle Upon Tyne City Council v Marsden [2010] ICR 743 it was held: “…the view that it is unjust to give the losing party a second bite of the cherry— seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal).” [17][12]The case of Ladd v Marshall [1954] I WLR 1489 provides guidance on the issue of admission of new evidence after the end of a hearing. The court held that the party seeking to adduce fresh evidence must show(1) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;(2) that it is relevant and would probably have had an important influence on the hearing; and(3) that it is apparently credible.[13]The court in Flint v Eastern Electricity Board [1975] ICR 395 addressed the issue of where evidence was alleged to have been suppressed by a party: “It seems to me that all those cases — there are others, but I will not take time to cite them all — show that in the ordinary courts, that is to say, the Court of Appeal, the High Court and the county court, there is plainly a residual class of unusual case where in justice it is right that there should be a re-trial to enable fresh evidence to be given, even though to some extent it may be said that the evidence was available.”[14]The court in Flint went on to consider the issue of the interests of justice: “First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one’s sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered. But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review.”[15]Further in Outasight VB Limited v Brown UKEAT/0253 it was held: “49. More specifically, as to an application to introduce fresh evidence after the determination of a case, the approach laid down in Ladd v Marshall will, in most cases, encapsulate that which is meant by the “interests of justice”. It provides a consistent approach across the civil courts and the EAT. Should a different approach be adopted in the ET because the principles of Ladd v Marshall are no longer expressly set out in the Rules? I do not think so. Those principles set down the relevant questions in most cases where judicial discretion has to be exercised upon an application to admit fresh evidence in the interests of justice. 50. In saying that, I allow that the interests of justice might on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not strictly met, but it was ever thus. Hence, the residual category allowed by Rule 34(3)(e) 2004 Rules and the recognition of how this might then be used in cases such as Flint and Deria. As to what circumstances might lead an ET to allow an application to admit fresh evidence, that will inevitably be case-specific. It is, of course, always dangerous to try to lay down any general principles when dealing with specific facts, particularly where - as here - one party is not represented and where the point was not fully argued below. That said, it might be in the interests of justice to allow fresh evidence to be adduced where there is some additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage (Deria). This might arise where there are issues as to whether there was a fair hearing below; perhaps where a party was genuinely ambushed by what took place or, as in Marsden, where circumstances meant that an adjournment was not allowed to a party when otherwise it would have been (there apparently because of an error on the part of that party’s Counsel).”[16]The courts in Flint and Outasight were both addressing different and earlier versions of the Employment Tribunal Rules of Procedure, however the principles remain valid that there may be circumstances whereby new material (which could have been available during the original hearing) may justify a re-hearing. Conclusions on application[17]I am not persuaded that the First Respondent withheld relevant material at the preliminary hearing, either deliberately or otherwise. The Second Respondent’s application does not persuade me that such material would have had an important influence on the Tribunal’s decision in any event.[18]The Second Respondent’s application makes a number of repeated arguments about what it says are the differences in the roles of the Bus Security Attendants and Bus Monitors, and also the differences in their objectives. I had considered these alleged differences during the earlier preliminary hearing, and I indicated the differences I had identified and the weight I placed on them. I am not persuaded that I had fallen into error in those findings.[19]In the preliminary hearing, having taken a common sense, pragmatic and a holistic view, I found that the activities carried out by the Bus Monitors for the Second Respondent were fundamentally and essentially the same as those carried out by the Bus Security Attendants on behalf of the First Respondent. Ms Woods confirmed in her evidence to the Tribunal that there were aspects of the Bus Monitor role which she carried out whilst a Bus Security Attendant. Nothing within the Second Respondent’s reconsideration application has persuaded me that I made an error in those findings.[20]The issue of the SIA licence was already considered and addressed in the reasons, and I have already found that this was not a requirement of the client, rather it was a requirement of the First Respondent. I already considered and addressed the issue of the First Respondent continuing to pay the Claimants up until the point that it did.[21]It is important for there to be finality in litigation, unless of course an error has been made. I am not persuaded that an error has been made, and it would not be appropriate now to grant the Second Respondent the opportunity to re-argue matters that have already been considered in detail, nor to argue matters which in hindsight it may have argued differently.[22]To the extent that the Second Respondent argues that the judgment contains errors of law, the appropriate way forward is for an appeal to the Employment Appeal Tribunal.[23]I therefore dismiss the Second Respondent’s application dated 2 December 2025 for a reconsideration on the basis that it is not in the interests of justice to grant it. Approved by: