Mr Ryan Crawford v Eyekon Services (UK) Ltd — 2021

The claimants brought claims for redundancy payments, unpaid notice and holiday pay, unpaid wages, and, for Mrs Cochrane, unfair dismissal. This preliminary hearing was confined to whether there had been a TUPE service provision change when Fernglen brought the cleaning and security services in-house on the reopening of Callendar Square shopping centre on 14 July 2020.

The tribunal found that Eyekon had been providing cleaning of the common parts and security services at the centre, including patrols, CCTV monitoring, opening and closing the centre, and responding to alarm calls. When the centre reopened after lockdown, Fernglen carried out the same activities itself, using its existing centre manager and temporary staff. Although opening hours were reduced, the tribunal held that the post-transfer activities were fundamentally the same as before, with only minor differences in the amount of work required.

The tribunal also found that there was an organised grouping of employees whose principal purpose was carrying out those services on behalf of Fernglen, and that all claimants were assigned to that grouping. It rejected the argument that the in-sourcing was for a single specific event or task of short-term duration, finding that at the transfer date Fernglen intended the services to continue and that any permanent closure was only a possibility at that stage.

The tribunal held that the relevant transfer occurred on 14 July 2020 and that the claimants did not object to the transfer for the purposes of regulation 4(7). It therefore held that the claims against Eyekon were dismissed, and that the claims would proceed to a full hearing against Fernglen. The tribunal also noted that the parties' dispute about payment and cooperation had left the claimants confused and insufficiently informed, but that did not alter the finding of transfer.