In Hunter v McCarrick the EAT held that where there was a change of contractors, there was no service provision change under TUPE 2006 where the activities carried out before and after the change were carried out on behalf of different clients.

One of the circumstances in which a service provision change takes place under TUPE 2006 is where the activities cease to be carried out by a contractor on ‘a client’s behalf‘and are reassigned to another contractor to carry out on ‘the client’s behalf’ (Reg 3(1)(b)(ii)).

Mr McCarrick was employed by Mr Hunter to manage a property portfolio for WCP on behalf of a client, WG Ltd. Aviva, the mortgagee, appointed receivers to control the properties and King Sturge to manage them. This meant that the services carried out by WCP on WGL’s behalf ceased and were instead carried out by King Sturge on Aviva’s/the receivers’ behalf. When he was dismissed, Mr McCarrick, brought a claim against Mr Hunter, who argued that he did not have sufficient service as there was no TUPE transfer when the change of contractors and change of clients took place.

The tribunal disagreed with Mr Hunter, holding that TUPE applied, but the EAT held that the tribunal were wrong. For Reg 3(1)(b)(ii) to apply, ‘a client’ on behalf of whom the services were being carried out before the transfer had to be ‘the client’ for whom the services were being carried out after the transfer. Therefore, although the contractor may change, the services had to be provided to the same client and so TUPE did not apply.