Who belongs to the organised grouping


A difficult question for those caught up in any transfer is working out exactly who transfers and who does not, and what choices, if any, employees and employers have in deciding who goes and who stays. 


Regulation 4 of TUPE (as amended, 2014) says that the only employees who transfer on the transfer date are those who are:


• employed immediately before the transfer (or who were dismissed unlawfully immediately before the transfer because of TUPE); and 


• who are assigned to the organised grouping of employees or resources. 


If there is a dispute, the onus is on the employee to prove that they are assigned to the organised group. 


Employees who “object” to the transfer before the transfer date will not belong to the transferring group. There are significant risks to “objecting” to a transfer (see page 424). 


A commissioning client does not have the statutory right under TUPE to dictate who is – and is not – included in the organised grouping of transferring employees. Only the transferor can decide (with the consent of the employee) who is to be removed from the organised grouping before the transfer date (Jakowiew v Nestor Primecare Services Limited t/a Saga Care [2015] UKEAT/0431/14/BA). In reality, service agreements often give a commissioning client a contractual right to demand the removal of a particular employee from the pool of workers providing the services at any time and without the need to provide a reason. A refusal to agree would be a breach of the service agreement by the service provider. 


An employee who remains employed as a member of the team providing the services will transfer automatically on the transfer date, even if they are suspended at the transfer date, for example, for disciplinary reasons (Jakowiew v Nestor Primecare Services Limited t/a Saga Care [2015] UKEAT/0431/14/BA).


Employees who work temporarily for the transferring part of the business will not transfer (regulation 2, TUPE). 


The mere fact that someone is doing a lot of work on a particular contract in the run up to a transfer does not mean their employment necessarily transfers when that contract ends and a new service provider takes over. Equally, someone’s employment could transfer even though they are not working on the transferring part of the business at the transfer date. Here is a good example:


When working out whether an employee transfers to the new business, the focus should be on the link between the employee and the activities carried out under the service contract or part of the business that is transferred. Hard questions are likely where someone’s time is normally divided between two or more different parts of the business and only one part transfers. The EAT has said that tribunals should look at where the employee is assigned to work in reality. 


Relevant factors include:


• how much time is spent on the transferring part of a business;


• the employee’s tasks and duties under their employment contract;


• the work they carry out day to day;


• how the employer allocates costs associated with their employment across different parts of the business; and


• the employee’s position in the organisational framework. For example, a manager with responsibilities spread across the whole business, rather than just the part that transfers, is unlikely to be included in the transferring group of employees.


There is no “percentage” test, as Mr Armitage’s case illustrates (see above). Even so, the percentage of time someone spends assigned to the transferring tasks can be useful as one factor to consider. Whether someone is assigned to the transferring group is always a question of fact for the tribunal to decide. 


Full-time union reps need to take particular care, as they may no longer be able to demonstrate that they are performing activities under the service contract. Here is an example: 


The fact that someone is off sick or on maternity leave at the transfer date does not stop them being part of the organised grouping. Their employment contract transfers automatically on the transfer date. 


Generally, some level of participation with the activities of the transferring group is required for an employee to belong to the group, or in the case of a temporary absence such as sickness, secondment or disciplinary suspension, some expectation of future participation. Where there is no prospect whatsoever of an absent employee ever returning to the organised grouping at the end of the absence, they are unlikely to be a member of the group (BT Managed Services Limited v Edwards [2015] UKEAT/0241/14/MC).