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What if you are temporarily assigned?
[ch 12: pages 457-458]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 actually working on the transferring part of the business at the transfer date:
Mr Armitage was a “trouble shooter” supporting various network maintenance projects across his employer's business. An important contract for the Welsh Assembly came up for renewal, so in the three months before the tender date, Armitage spent 67% of his time working on it. When the bid was lost to rival Costain, Armitage argued that he was part of the organised grouping assigned to the contract. His claim failed. It would not be unusual, pointed out the EAT, for someone who normally works across the business as a whole to be tasked with focusing all their efforts on a particular contract just before it is up for renewal. But Armitage’s job was to respond to different projects across the business as the need arose. He was not part of the organised grouping assigned to the Welsh Assembly contract, so his employment did not transfer when that contract was lost.
Costain v (1) Armitage and (2) ERH Communications Limited [2014] UKEAT 0048/14/DA
Full-time union reps need to take particular care, as they may no longer be able to demonstrate that they are assigned to the organised grouping. Here is an example:
A full-time shop steward did not transfer when the maintenance division he was originally contracted to work for transferred. Although paid as a plumber, the only plumbing work he had done since becoming a full-time rep was on an out-of-hours rota. Instead, he worked full-time on trade union duties across several council departments. The EAT found that he did not transfer with the rest of the division because he was no longer assigned to work there.
Birmingham City Council v Gaston EAT/0508/03
An employee on sick leave, study leave or maternity leave is assigned to the part of the service or undertaking being transferred, even though they are absent immediately before the transfer date (Fairhurst Ward Abbotts Limited v Botes Building Limited [2004] EWCA Civ 83).
Generally, in the case of an absent worker, there needs to be some expectation that they will re-join the group when they return to work. Where there is no prospect whatsoever of an absent employee ever returning to the organised grouping at the end of an absence, they are unlikely to be a member of the transferring group. This was the case in BT Managed Services Limited v Edwards [2015] UKEAT/0241/14/MC. In this unusual case, Mr Edwards had been off work for over five years, with no prospect of ever returning, but he was kept “on the books”, initially so that he could continue to qualify for Permanent Health Insurance. He was not part of the organised grouping, said the EAT. The case is under appeal to the Court of Appeal.