![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201805.jpg)
Organised grouping of employees
[ch 12: pages 420-421]The next step is to identify the organised grouping of employees whose main task is to perform the activities under the service agreement. Only employees who were engaged in delivering the “activities” covered by the service contract immediately before the transfer date will transfer. Anyone whose main task is to perform organisation-wide activities, such as human resources or strategy, is unlikely to transfer, even if delivering the service contract was the organisation’s only activity. Here is a good example:
Edinburgh Council took back in-house its homeless support services that had been contracted out to a voluntary organisation. The employment of everyone engaged in front-line service delivery transferred to the council. But the contracts of the charity’s two directors did not transfer, because they were not engaged in delivering the activities under the service contract. Instead, they worked on wider strategic tasks such as bidding for new work, or managing the charity as a whole. It made no difference that the service contract was the charity’s only business at the time of the transfer.
Edinburgh Home-Link Partnership v City of Edinburgh Council [2012] UKEATS/0061/11/B1
There can only be a service provision change if employees were deliberately grouped together by the outgoing service provider in a team dedicated to delivering the activities under the service contract. There will be no transfer where workers were grouped randomly, or organised to suit the service provider’s own convenience. For example:
Eddie Stobart ran a warehousing and logistics business, distributing meat between suppliers and supermarkets. Stobart lost the distribution contract for one supplier, Vion. As a result of the timing of Vion’s supermarket orders, picking and packing on its contract was mostly done by the day shift, whereas the night shift worked mainly on a different contract. In practice, pickers had no idea whose goods they were packing. Work was organised like this because of the time of day when Vion’s own customers normally placed orders, and to suit shift patterns and working practices at the warehouse. Vion’s service contract did not require work to be organised in this way. There was no “dedicated Vion team” at Stobart.
There was no service provision change in this case, said the EAT. A valid service provision change requires a group of employees to have been deliberately organised into a team to service the requirements of a particular client under a service contract. TUPE is supposed to operate in a clear and predictable way. This would be impossible if an employer’s identity changed automatically every time a service contract ended just because employees happened to be randomly assigned to it, for example, to a night shift as opposed to a day shift.
Eddie Stobart Limited v Moreman & Others [2012] UKEAT/0223/11
The activities must be the main task (“principal purpose”) of the group, although they need not be their only task. If, before the transfer, employees are contracted to work in a variable pattern across the business, there is much less likelihood of TUPE being triggered.
An organised grouping of employees can be made up of just one person (regulation 2(1), TUPE), as long as they are the only person employed to provide the activities under the service contract. Someone can be “assigned” to an organised grouping even if they are the only person in that “grouping” (Rynda (UK) Limited v Rhijnsburger [2015] EWCA Civ 75).