An economic activity

Case 2: The facts

Mr McCormack and his colleagues worked for the same contractor for a number of years, extracting minerals on an open-cast site. A new contractor was appointed, and the workers returned from annual leave to find themselves employed by the new contractor on different terms and conditions. They argued that their terms were protected under TUPE.

The issue was whether or not there was a relevant transfer to which TUPE applied.

The ruling

The EAT considered whether the contractor carried on the same activity after the transfer. It held that, apart from a change in foreman, the activity continued just as before, with the same skilled workforce. It did not matter that the new contractor used different equipment; in fact, it had tried to buy equipment from the old contractor. There was a TUPE transfer, and the workers' rights were protected.

Scottish Coal Company v McCormack EATS/0034/03