UK: EAT Gives Guidance On How TUPE Applies To Service Provision Changes

In Kimberley Group Housing Ltd v Hambley and ors and Angel Services (UK) Ltd v Hambley and ors, the Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal's finding that where a service provision contract is performed by one company and is taken over by two companies, the liability for transferred employees should be apportioned between the two companies.

This is an important case, as it is the first guidance to be given by the EAT on the effect of service provision changes under TUPE.

What Did The Court Decide?

Leena Homes Ltd (Leena) was contracted by the Home Office to provide accommodation and related services for asylum seekers. In 2006, Leena lost the contract and Kimberley Group Housing Ltd (Kimberley) and Angel Services (UK) Ltd (Angel) were awarded the right to succeed Leena under a new contract. The six claimants - employees of Leena engaged in providing these services – lost their jobs as a result and claimed they had been subject to a TUPE transfer.

The Tribunal examined regulation 3(1)(b) of TUPE which provides that a relevant transfer under TUPE can be a 'service provision change'. The Tribunal found that there had been a service provision change because, as described by regulation 3(1)(b)(ii), activities ceased to be carried out by a contractor on a client's behalf and were now carried out instead by another person ("a subsequent contractor") on the client's behalf. The Tribunal asked itself, "to whom did the contract of employment or liability of each claimant under or in connection with the service provision transfer?" In response, it concluded that "although the people and their contracts cannot be "split", the liabilities under these contracts can." Applying this reasoning, the Tribunal held that liability for the transferring employees should be apportioned between the two subsequent contractors, Kimberly and Angel, depending on how much of each claimant's work each successor adopted. The two companies appealed against the decision.

The EAT allowed the appeal, holding that although the Tribunal was correct in finding that there had been a service provision change, its conclusion regarding the effect of that service provision change was "fatally flawed". There is no precedent in statute or in common law for the division of liabilities under a contract between two transferees on a percentage basis. Whilst the Tribunal correctly recognised that an employee could not be the servant of two masters, it considered that the liabilities under the contract of employment could be separated out. The Tribunal reasoned that this was possible because the employees concerned had been dismissed. However, the EAT pointed out that the Tribunal's reasoning would require the same apportionment to be applied even where the employees are still employed. This would cause obvious difficulties which demonstrated that this approach could not be right.

The overall principle, said the EAT, is essentially the link between the employee and the work or activities to be performed. The EAT considered that the Tribunal should have established which company had, after the service provision change, taken on the activities which each employee claimant had previously performed. In order to establish this, the Tribunal should have been guided by the principles set out in the European Court case of Botzen v Rotterdamsche Droogdok Maatschappij (1985) ECJ as applied by the UK Court in Duncan Webb Offset (Maidstone) Ltd v Cooper (1995).

Had they taken this approach, the EAT were convinced that the Tribunal would have had to find that all six claimants transferred to Kimberley because Kimberley had taken on the majority of the activities previously carried out by Leena. The EAT therefore found that the employees had transferred to Kimberley and Kimberly alone was liable for them.

What This Decision Means For Employers

This is the first piece of guidance on how a Tribunal should approach the situation in which a service, once provided by a single contractor, is later to be provided by two or more contractors. It is clear from this case that the contractors cannot be jointly liable for any particular employee. The question, therefore, is which of those two contractors, if any, should take responsibility for any employee who had been engaged in performing the service previously and on what basis?

In this particular case, the EAT considered which of the contractors had adopted the majority of the activities performed by the previous contractor in order to determine who took on responsibility for the transferred employees. This, it seems, was done in part for economic and practical reasons as requested by counsel for each of the parties, rather than having another Tribunal reconsider the facts and come to a decision.

In practice, a Tribunal faced with this sort of case would have to apply the test as laid down in Botzen and Duncan Webb which decided that it is a question of fact as to which employees were "assigned to" the business, or part of business transferred. It will not always necessarily be simply a question of which contractor took on the majority of the activities of the previous contractor, as in this case. Although, in Duncan Webb, no definitive rules were provided, a number of helpful factors were suggested – the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do and how the costs to the employer of the employee's services had been allocated between the different parts of the business. There is not an exhaustive list of factors but the focus should be on the link between the employee and the work or activities which are performed and whether the employer is "assigned" to the work transferred.

Click here to view EAT judgement.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.