The claimant’s employment had transferred to the second respondent in a disputed TUPE situation – this made them liable for unfair dismissal when they did not accept him.

The claimant worked for the first respondent as a Software Engineer and ICA Technician – it was agreed that the employment dated back to June 1990.  At the material time, the claimant was engaged on a contract with NI Water which had been in existence since 2015. The contract was previously held by the TES Group by whom the claimant was employed.  The first respondent bid for the NI Water contract in 2019 and was successful – as a result the claimant’s employment (along with two other engineers) transferred to the first respondent.

The three engineers worked from home and covered areas across NI.  These were split into 9 geographical areas and each covered those closest to them.  However, NI Water devised a framework by which the existing geographical zones would be split into three separate lots.  This was put out to tender and under the new arrangements a company could only be awarded one lot. The claimant’s lot was ‘2’ and this was awarded to respondent two.  An issue arose when respondent two raised an issue about the claimant’s lack of availability to work on call which they felt was a large part of the contract. The formal consultation took place between respondent one and the claimant regarding his transfer to respondent two.

The second respondent met with the claimant. The claimant stated he had done 30 plus years on call and that he did not want to do it. He stated he did not need a guaranteed 40 hours per week.  The respondent, following the meeting, was concerned that the claimant did not solely work on their allocated area and that he would not consider on-call work.  The claimant had a subsequent meeting with respondent one and they stated that TUPE applied and that from Monday 11th December 2023 he was no longer their employee and he was to attend respondent two.  The claimant even asked what he should do if he doesn’t hear from the second respondent and he was advised to turn up to keep himself right.  The next day the second respondent wrote to the first rejecting the TUPE transfer of the claimant.  The claimant was told by the second respondent that he would remain an employee of the first until further notice.

The claimant requested his holiday balance but was told it had been transferred to the second respondent.  This was queried by the second respondent stating that he was not in their employment.  The claimant issued a grievance with both respondents – both declined to respond to it citing that it was for the other to deal with.

The issue was the application of the Service Provision Change (Protection of Employment) Regulations (NI) 2006.  This related to the protection of workers when there was a business changing hands. This related to the NIW Framework document which stated that TUPE applied.  It was clear that the claimant worked in the relevant area (Lot 2) but was unwilling to work on-call. The second respondent stated it was an important part of the job but the evidence stated that it could be done via subcontractors and other employees and was only required for one in seven weeks. Under the case of Enterprise Management Services v Connect-Up Ltd it outlined the aspects the Tribunal had to consider.

The first is to identify the activities performed by the original contractor.  From the evidence, the claimant worked on 75-80% on the area allocated to the second respondent. The second is the question of whether the activities are fundamentally the same as those carried out by the new contractor. The nature of the activities was the same and the on-call work was not a significant impact on the nature of the activities. The third is whether there is an organised grouping of employees who carried out the work. To this end, the claimant was a single member organised grouping which had the principal purpose of carrying out the activities of the client.  Fourth related to exceptions relating to single events or short-term duration which did not apply.  Fifthly, it related to individuals within a grouping which again did not apply in this situation.

Bearing those in mind the Tribunal found that the claimant’s employment transferred from the first to the second respondent on 11th December 2023.  As a result, respondent two is liable for the automatic unfair dismissal of the claimant. The claimant was awarded £31,962.46.

This case showcases a situation in which the employee is caught in the middle of two employers arguing about whether a TUPE situation has arisen. Unfortunately, for the claimant it led to a grievance being issued to both yet neither would deal with it pointing the finger at the other.  The Tribunal determined this through the framework set out in Enterprise Management Services and showing that a TUPE situation had arisen and the claimant’s employment had transferred to the second respondent.

NI Tribunal decisions are available on the OITFET website.