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TUPE or not TUPE, that is the question! Assignment of employees to the group transferring

I was heartened to read the recent case of Jakowlew v Nestor Primecare Services Ltd t/a Saga Care because it made me feel at one with the EAT.  A sad aspiration, I know.

The facts were as follows: the Claimant was employed by Saga Care as a care work manager who worked for the most part on a contract for the London Borough of Enfield. Concerns were raised by Enfield about the Claimant’s conduct and it wrote to Saga Care instructing it (lawfully) to remove her from its work.  Saga Care initially disagreed that Enfield had the right to issue the removal instruction and went through a disciplinary procedure after which it issued the Claimant with a written warning. During this time, Saga Care’s contract with Enfield expired and Westminster Homecare Limited (“WHL”) became the supplier.  Some employees of Saga Care transferred to WHL under TUPE but there was the customary confusion/discussion about whether the Claimant was assigned to the group transferring.  Eventually, Saga Care accepted that the Claimant had not transferred to WHL because of Enfield’s instruction to remove her from the contract. Saga Care therefore continued paying the Claimant initially but then dismissed her by reason of redundancy, leading her to claim unfair dismissal and argue that her employment had transferred to WHL.

The employment tribunal found that there was a service provision change under TUPE. However, immediately before the transfer, the Claimant had been removed by Enfield from the contract. Therefore, at the time of the transfer, the Claimant was not in the organised grouping of employees which carried out the work so she did not transfer to WHL. The Claimant appealed to the EAT, arguing that Enfield’s instruction to remove her from the contract was not capable of removing her from the organised grouping of employees.

Unsurprisingly, I think, the EAT allowed the Claimant’s appeal, holding that it could not be the case that, whenever a third party instructs an employer to remove an employee from working upon a contract, the employee immediately ceases to be assigned to the organised grouping of employees. The employer would have to take some action of its own to remove the employee, which Saga Care had not done – in fact it had done the opposite by challenging the instruction to remove the Claimant.  Therefore, the Claimant’s employment transferred to WHL.

Interestingly, the EAT distinguished this case from the recent one of Robert Sage Ltd t/a Prestige Nursing Care Ltd v O’Connell which had similar facts.  However, in that case, the employee in question was suspended at the time of the transfer and the transferor had accepted that there was a problem with her working with a particular service user (rather than in an office like the current case).

The debate about who is included in an organised grouping of employees is a perennial problem for those involved in negotiating out/insourcing agreements, changes to service providers and sales of assets where TUPE is engaged.  You often find the other side seeking to “cherry pick” employees with good performance or “dump” bad ones.  Hopefully, this pair of cases will provide some useful ammunition to negotiators by way of clear guidance about how to deal with seemingly difficult cases, although if anything they are also a reminder that it is only really courts who can decide for sure!

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