A recent ruling in the Employment Appeal Tribunal (EAT) gives clarity about when an employee is “assigned” to an employer before a TUPE transfer. In his latest TUPE update, Dr John McMullen explains the ruling’s implications for employers.
In Robert Sage Limited t/a Prestige Nursing Care Limited v O’Connell (UKEAT/0336/13), an employee was employed by a service provider to look after a vulnerable adult under a service contract with a local council. The council then required the individual to be removed from that service, the employer consented and the individual was withdrawn from her duties.
When, in due course, the service transferred to another service provider under TUPE, the individual was no longer legally assigned to the service concerned because of the decision by the employer to withdraw the employee in accordance with the council’s wishes. Accordingly she did not transfer, under TUPE, to the new provider.
The same issue arose in Jakowlew v (1) Nestor Primecare Services Limited t/a Saga Care (2) Westminster Homecare Limited (UKEAT/0431/14/BA), but the facts were slightly different.
Saga had an organised grouping of employees that worked on a care services contract for the London Borough of Enfield. Jakowlew was employed as a care manager. Saga’s contract with Enfield included a clause under which the council reserved the right to reject staff that it considered to be unsuitable for the duties involved.
In June 2013, Enfield wrote to Saga expressing its concerns about three employees and informed Saga of its decision that Saga should remove those members of staff pursuant to the service contract’s conditions. But Saga objected to the instruction, and held disciplinary meetings with the individuals concerned, which resulted in a written warning for conduct.
Westminster Homecare took over the contract from 1 July 2013. Saga and Westminster held meetings and agreed that the claimant should not transfer, but there was now no work at Saga and the claimant was made redundant. The individual claimed that she should have transferred to Westminster under TUPE. The question was whether or not she was assigned to the organised grouping of employees that had, as its primary purpose, the carrying out of the activities concerned on behalf of Enfield.
The employment judge concluded that immediately before the transfer, the claimant had been removed by Enfield from the service provision by virtue of its letter to Saga. Thus, said the employment judge, the employee was not employed in the organised grouping that carried out the Enfield Council contract and, in those circumstances, did not transfer, and at all material times remained an employee of Saga.
The employee appealed. Her case was that the employment tribunal was wrong to treat Enfield’s instruction as conclusive of the matter. She relied on the fact that Saga did not act on the instruction. Saga had disputed the instruction and was continuing to dispute it on 1 July 2013 when the transfer took place.
Test for whether or not an employee is assigned to a TUPE transferor
The EAT considered the concept of “assignment” and concluded that the TUPE Regulations relate to assignment by or with the authority of the putative transferor, the employer concerned. The EAT did not consider that this related to assignment by the unilateral act of a third party without the employer’s intervention or authority.The case differed to that of Robert Sage Limited v O’Connell because, in the latter case, the local authority had sent a specific request to the employer that the employee was not placed with the particular individual user of the services. The employer accepted the request and informed the employee that it was not appropriate for her to return to work looking after the user.
The true test, applying the authority of Fairhurst Ward Abbotts v Botes Building  IRLR 304, was whether or not, immediately before the transfer, the employee would have been required by the employer to work in that group if he had not been excused from attendance.
Suspension of the employee on full pay pending disciplinary proceedings did not, as such, have the effect of removing the employee from the organised grouping of employees to which she belonged. The suspension was therefore analogous to any other category of excused attendance from work, such as holiday, study leave or sickness absence (as in the Botes case).
The expectation of the parties would be that if the disciplinary proceedings did not end in demotion or transfer, the employee would return to work in the group to which she had belonged. The unilateral instruction of a third party, in itself, did not de-assign an individual from the organised grouping of employees carrying out the services.
It would be odd indeed, said the EAT, if an employee were to lose TUPE protection even though the employer had treated her at all material times as belonging to the group of workers that transferred.
In the EAT’s judgment, it was plain from the findings of the employment judge that, up to the relevant date, Saga did nothing to remove the claimant from her assignation to the organised group of workers to which she belonged and therefore only one outcome was possible. The individual was assigned and her appeal was allowed.