Mr J Higgins (lead v MacLay (Civil Engineering) Limited and 1 other — 2019

This was a preliminary hearing on whether there had been a relevant transfer under TUPE 2006 in connection with North Lanarkshire Council's footpath resurfacing and associated work. The tribunal accepted that NLC was the client and that the respondents were contractor and subsequent contractor, and it identified the relevant activities as the repair and replacement of surfacing in and around housing estates, tower blocks, footpaths, hard standing, car parks and local offices. It also found that the claimants had transferred to the first respondent on 30 November 2015 and had been known as the "TUPE squad" or "TUPE boys".

The tribunal found that immediately before the alleged transfer the organised grouping comprised Joseph Higgins, Joseph McGuigan, Gerard Gow, Michael Sloan, Alexander Forrest, E Craig and J Whitefield. It accepted that the grouping had originally been deliberately organised for the principal purpose of servicing NLC work, but emphasised that the relevant question was the position immediately before the service provision change. In assessing that position, the tribunal relied heavily on time sheets and found that the team had spent a clear majority of its time on NLC work during 2017, but that the pattern changed materially over the later period.

The tribunal concluded that the principal purpose of the organised grouping had become diluted by the time the second respondent assumed responsibility for the contract in July 2018. It relied on the evidence that there had been a continuous 16-week period from 22 June 2017 to 29 October 2017 during which the team did no NLC work, followed by further periods in 2018 where the team worked on both NLC and non-NLC work. It held that, by the relevant date, the grouping was no longer organised principally to carry out work for NLC but instead to carry out a type of "pick and shovel" work for whichever contracts the first respondent considered appropriate.

On that basis, the tribunal held that there was no service provision change because the condition in regulation 3(3)(a)(i) TUPE 2006 was not met. It therefore answered the preliminary issue against the claimants and held that the issue of assignment, and the broader question of who transferred, did not arise. No monetary remedy was awarded in this judgment.