The claimant had been one of three service engineers employed by the respondent to work on contracts for part of what is now the Belfast Health and Social Care Trust. The relevant contract work was retendered at the end of 2014 and the respondent was unsuccessful in its bid. 

The central issue before the tribunal was whether the claimant’s original employment with the respondent had remained at the date of the termination (31 December 2014) or whether it had transferred as a service provision change, pursuant to the Service Provision Change (Protection of Employment) Regulations (NI) 2006 to either of the potential transferees i.e. the 2 ultimately successful contractors. 

The tribunal held that even if the claimant actually refused offers of work from the transferee contractors this would not amount to a refusal to accept a service provision change and technically his employment remained with the respondent.

Practical lessons

What shocked the tribunal was the absolute lack of records which each party kept in relation to allocation of work prior to December 2014. Such documentation would have been able to reveal crucial information about where and when the claimant worked and would have been relevant in determining whether he should have transferred under the Regulations. 

How exactly the claimant’s work was divided up prior to December 2014 could not be assumed by the tribunal against the backdrop of a complete lack of evidence. In such a situation a transferor will often seek to ensure that an employee’s contract of employment transfers on, which obviously reduces its potential liability for subsequent claims. This decision suggests a finding that a claimant’s employment did not transfer under a Service Provision Change is more likely without documentary evidence as to division of work prior to any potential transfer.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/