All or nothing or divided and apportioned?
by Philip
For those interested and involved in TUPE, there is a very important decision on TUPE reported today.
In the case there was a service provision changeover. However instead of awarding the contract to one company , the contract went to two separate companies - A and B. The previous contractor we can call C.
A and B were not awarded an equal amount of the contract. A was awarded 71% and B was awarded 29%. To keep things simple, let’s say C (the transferor) employs 10 people on the contract that is transferring .
The question for the Tribunal (and I am distilling this) was:
1. Does A have 7 employees transfer and B 3 employees transfer, consistent with the terms of the contract?
2. Does A have 10 employees transfer and B none, consistent with Botzen?
The answer is 2. A was landed with 10 employees, despite only winning 71% of the contract.
This case will be useful if you are an employer awarded a small percentage of a large contract. You can argue that the party winning the large share of the contract should assume responsibility for all employees in scope.
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