TUPE or not TUPE?

In Ward Hadaway Solicitors v Capsticks Solicitors LLP [EAT/0471/09], Ward Hadaway Solicitors (WH) was contracted to provide legal services for the Nursing & Midwifery Council (NMC) until 30 September 2007. On 1 October 2007, Capsticks Solicitors was awarded a contract to provide legal services to NMC.

WH argued that there was a “service provision change” from WH to Capsticks under TUPE. The EAT held that the tribunal was entitled to find that such a change had not taken place.

The tribunal found that nothing was transferred from WH to Capsticks on or after 1 October 2007. WH continued to work on the NMC’s cases that they had already been working on before 1 October 2007. In fact, WH was still working on some of those cases in March 2009.

There was no “service provision change” from WH to Capsticks since WH had not stopped providing legal services to the NMC on 1 October 2007.

The tribunal also found that the legal work carried out by WH was not the same legal work (or the same activity) carried out by Capsticks, e.g. most of the work previously carried out by WH was now carried out by the NMC’s own legal team.