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Change of client does not bring about TUPE transfer
In Horizon Security Services Limited v Ndeze and another, the EAT, in applying the Court of Appeal decision in Hunter v McCarrick, held that there was no service provision change and therefore no application of TUPE in circumstances where a security company’s contract was terminated and a different organisation engaged a different security company to temporarily continue the services.
The case concerned a business centre which was managed by a company and owned by a local authority. Shortly before the centre was due to be demolished, the company which ran the centre terminated the contract of the security company then providing these services. The centre was due to be demolished and for the interim period before demolition (anticipated as being 9 months) the local authority engaged a different security company. The EAT held that there was no service provision change because, in accordance with the Hunter case, a service provision change required the services which were carried out pre and post transfer to be on behalf of the same client. In this case, the services had been terminated by the company which ran the centre, and the new security company had been engaged by the local authority which owned the building. There was therefore no service provision change and no TUPE transfer.
The EAT also held that in any event the service activities were being carried out in connection with a short term event or task of short term duration, one of the exceptions to the service provision change.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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