plc v Represented by:10 Mr T Merck, Advocate [Instructed by: Ms B Msi – Inhouse Counsel] ADL Lift Services Ltd — 2023

The tribunal heard a preliminary issue about whether TUPE 2006 applied to the transfer on 1 April 2022 of the Lot 1 lift servicing and repair contract for housing stock, tower and low rise in North Lanarkshire. The relevant activity was accepted to be servicing, maintenance and repairs of 102 residential lifts. The issue was whether, immediately before the transfer, the respondent had an organised grouping of employees whose principal purpose was carrying out that activity on behalf of Mears.

The tribunal considered the contractual history from 2015 onward, including evidence that the respondent invoiced for four engineers and sometimes five engineers, but found the documentary record unclear about the number of lifts involved and how staff were actually allocated. It found that the work carried out for Mears was broader than Lot 1 and included callouts and servicing for schools, leisure facilities, sports centres and offices, as well as residential lifts. The tribunal accepted that callouts were a priority, that work was allocated fluidly, and that Mr McCorkindale acted as the principal contact for Mears.

Applying the TUPE authorities cited in the reasons, the tribunal was not satisfied that all four named employees had been organised specifically for Lot 1. It found that Mr Graham did substantial work on Lot 1, but that Mr Dolan's work also covered other clients and non-residential work, Mr Taylor was allocated ad hoc depending on who needed assistance, and Mr McCorkindale's role was mainly administrative and not confined to Lot 1. Even if an organised grouping existed, the tribunal held that its principal purpose was to attend callouts and carry out servicing across the North Lanarkshire area for Mears, not to service and repair Lot 1 alone.

The tribunal therefore concluded that there was not an organised grouping of the respondent's employees whose principal purpose was the provision of servicing and repairs of lifts in respect of Lot 1. As a result, TUPE 2006 did not apply to the alleged service provision change and no transfer under regulation 4 arose.