Service provision change: fundamental similarity or difference?
The Employment Appeal Tribunal (EAT) held in Salvation Army Trustee Company v Bahi that activities carried out before and after a service provision change were the same.
Coventry City Council provided a range of services to homeless people through 22 separate contracts, with different service providers.
The charity Coventry Cyrenian Limited (CCL) had two contracts with the Council to provide accommodation-based support for the homeless men and women. The contracts required CCL to provide 41 units of accommodation for the homeless, and they provided these in ten houses of multiple occupation at different locations.
Mrs Bahi and three other claimants worked almost entirely on these contracts as support workers in the Adult Services Team. In her role, Mrs Bahi supported service users to address problems with benefits and form filling, monetary management, alcohol and drug misuse, offending behaviour, mental health, disabilities, and life skills. Service users were expected to stay in CCL’s accommodation for around 6 months, before moving on and receiving ‘floating’ support.
The council decided to merge the provision for homeless and ex-offender support through a single point of access, removing the need for 22 separate contracts.
A new contract covering these merged services was put out to tender, and was awarded to the Salvation Army Trust Company (SAT). SAT acquired hostel premises where service users who could not be placed in private accommodation would stay for a limited time. Support workers attended the hostels between 7.00 a.m. and 7.00 p.m.
CCL and Mrs Bahi brought a claim that there had been a service provision change under TUPE.
An Employment Tribunal found that the activities carried out before and after the change were fundamentally the same. Accordingly, there had been a service provision change under TUPE.
The EAT held that the ‘activities’ should be given their ordinary, everyday meaning, defined in a pragmatic way. The EAT found that the Tribunal had assessed the matter correctly, taking ‘a correct course between the twin dangers of overgeneralisation and pedantry’.
The EAT disregarded SAT’s argument that the Tribunal had been incorrect to focus on the fundamental differences between the services provided, as opposed to the fundamental similarities. The correct assessment had been made.
Interestingly, the EAT commented on the need to resolve these types of issues speedily. A fast track procedure in these instances is desirable – though perhaps a topic best covered by judicial assessment.
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