The case of CT PLUS (Yorkshire) CIC v. Black and ors looked at
whether a change in bus service from subsidised to commercial
venture could be a "service provision change" (SPC)
within the scope of the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (TUPE). The EAT held that it was not
an SPC as the new provider did not provide the service "on the
Council's behalf", as required under TUPE.
CT PLUS (Yorkshire) CIC (CTP), ran a subsidised park-and-ride
bus service in Hull under a contract with the Council. Lincolnshire
Road Car Ltd T/A Stagecoach (LRC) decided to run its own
unsubsidised service on the same route. As the Council was not
required to run a subsidised service in competition, the Council
ended the contract with CTP. LRC used its own buses, took nothing
from CTP and had no contract with the Council. LRC disagreed that
TUPE obliged it to take on CTP's drivers. LRC believed there
was no transfer. The EAT had to decide who should compensate the
stranded CTP employees.
An employment tribunal judge reviewed the matter. He held LRC
was running the service in its own interest and there was no SPC.
He held LRC did not carry out the activities for the Council
("on the client's behalf") as TUPE requires. On
appeal the EAT agreed with the employment tribunal judge that TUPE
did not apply. The EAT did not feel the Council remained the
"client" as LRC was running it as a commercial venture
and ignored reservations raised by the Council (for example, in
relation to changes to running times). These were important
considerations for deciding whether there was a "client"
for the purposes of TUPE or simply an "interested
bystander", as held here.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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