It depends! – advises Employment Lawyer, Stuart Snelson, following the recent Employment Appeal Tribunal (EAT) decision in Jinks v London Borough of Havering.
In a case concerning the meaning of the words ‘client’ and ‘contractor’ for the purposes of Regulation 3(1)(b) of the TUPE Regulations, the EAT has confirmed that where one party (A) contracts out a service to another (B), who then sub-contracts the service to a third party (C), A can be the ‘client’ of C. The question is one of fact, not law.
The EAT confirmed that the following principles apply:
- The question of who is the client for the purposes of TUPE Regulation 3 is one of fact, not law;
- There can be more than one ‘client’ in any given case; and
- When read together, TUPE Regulations 3(1)(b)(iii) and 2(1) show that the person on whose behalf services are provided by a sub-contractor may not necessarily be the contractor who sub-contracted the services.
Stuart Snelson advises that ‘This case shows how tricky TUPE can be in an outsourcing situation. Proper consideration must be given to the specific circumstances on every occasion.’
If you require any advice on TUPE, or any other employment matter, please contact Stuart Snelson at firstname.lastname@example.org or on 01908 689318.