Second Claimant: Mrs L Lindley Miss J Coutts First v Serco Limited Second Respondent — 2021

This was a preliminary hearing on whether TUPE applied when the Council’s contract with Serco ended on 2 July 2020, what claims could proceed, and whether the Second Claimant’s claim should be struck out for not being presented on the prescribed ET1 form. The Tribunal held that the relevant activity under the contract was the processing of housing and council tax reduction benefits, carried out by Serco Benefits Officers through the Council’s document management system by taking work from the tray and completing it.

The Tribunal rejected the Council’s narrower description of the activity as merely the provision of additional overflow resource when required. It found that the post-termination work carried out by Council employees was fundamentally the same as the work done by Serco employees, and that automation and the reduction in workload did not make the post-transfer activities different in substance. The Tribunal also found that there was not a significant and substantial reduction in processing work in May 2020, and instead found that the Council increased the amount of processing work done in-house after removing Serco’s access.

On the TUPE conditions, the Tribunal found that there was an organised grouping of Serco employees with the principal purpose of carrying out the relevant activities on behalf of the Council, and that each Claimant was assigned to that organised grouping. It therefore held that there was a service provision change on 2 July 2020.

As a result, the Tribunal allowed the claims that the dismissals were automatically unfair under TUPE regulation 7 and unfair under section 98 of the Employment Rights Act 1996 to proceed against the Second Respondent, and allowed the claims for failure to inform and consult under TUPE regulation 13, including the regulation 14 issue about employee representatives, to proceed against both Respondents. It also refused Serco’s application to strike out the Second Claimant’s claim, holding that the claim had been accepted by the Tribunal and that rule 10 did not require rejection or strikeout in those circumstances.