The question of when there is or isn’t a transfer for the purposes of the Transfer of Undertakings Regulations (Protection of Employment) Regulations 2006 has always been a perplexing one.  This was the issue to be determined by the EAT in the case of Ward Hadaway Solicitors v Capstick solicitors (and others) reported today. Another case involving the application of TUPE to firms of solicitors.

The relevant provision of TUPE is Regulation 3 (1) (b).  This provides that TUPE applies where there has been a service provision change.  In essence, this is where activities cease to be carried out by a contractor on a client’s behalf and are carried out by another person or by the client on his own behalf.

In this case Ward Hadaway, firm of solicitors, were one of a panel of four providing services to the Nursing & Midwifery Council (“NMC”).  The work included investigation, preparation and advocacy but there was no obligation for work to be allocated to Ward Hadaway.  In 2007 NMC decided to tender out its work and chose Capsticks as the single provider of its services.  They also decided to  bring much preparation work, including advocacy, in-house.

The issue was whether two solicitors of Ward Hadaway had been the subject of a TUPE transfer.  The EAT considered whether the activities carried on by Capsticks were fundamentally the same as those carried on by Ward Hadaway.  They determined that the ‘activity’ for TUPE purposes was work in progress and not the expectation of future work, this continued to be carried out by Ward Hadaway.  As activities (work in progress) did not cease to be carried out there had therefore been no service provision change

A useful case to assist with this ever perplexing question.