LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 3

Who belongs to the “assigned grouping”?

[ch 3: pages 27-28]

Identifying who is assigned to the transferring business is not always straightforward. The case law says that the focus should be on the link between the employee and the work or activities that are being transferred. An employee may have more than one role, or the section that transfers may be part of a larger department. Difficult questions are likely where time is divided between two or more different parts of the business and only one part transfers. The EAT has said that what is important is to look at where the employee is assigned to work in practice.

In any tribunal claim, the employee must prove that they were assigned to the organised grouping where this is in dispute, but the tribunal must remember the purpose of the Directive — to safeguard the interests of employees (Duncan Webb Offset (Maidstone) Limited v Cooper [1995] IRLR 633).

Just “being involved” in carrying out the transferring activities immediately before transfer is not likely to be enough to show you were assigned to the transferring group, if this is disputed. Relevant factors could include:

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

• the employee’s tasks and responsibilities;

• is it a temporary or permanent assignment;

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

• the organisational framework.

There is no percentage test. The percentage of time an employee spends assigned to the transferring activities is a significant factor, but it is not decisive. It is always a question of fact for the tribunal, looking at all the circumstances.

For example, in Skillbase Services Limited v King [2004] UKEAT/0058/03/1201, a tribunal decided that a manager’s employment did not transfer under TUPE when a local authority maintenance contract on which he spent 80% of his time was awarded to a new provider. Only one Skillbase branch serviced the contract, but Mr King’s managerial responsibilities covered not just that branch but all the others.

Similarly, in Edinburgh Home-Link Partnership v City of Edinburgh Council [2012] UKEATS/0061/11/B1, two directors did not transfer when the only contract held by a voluntary sector homelessness organisation was taken back in-house by the local authority. All the front-line staff transferred, but the EAT decided that two directors were not assigned to the organised grouping. Their roles were strategic and included work on the re-tendering process, liaising with the board of trustees and making sure the organisation met regulatory standards. These tasks were carried out for the wider organisation, rather than for delivery of the contract (see also page 19).

Here is a similar case involving a full-time shop steward:

Mr Gaston was a full-time union rep at Birmingham City Council. Although he continued to be paid as a plumber, the only plumbing work he still did was on an out-of-hours rota. Instead he worked full-time on trade union duties across several council departments. The Court of Appeal decided that he did not transfer when the department where he was paid to work transferred, because he was no longer assigned to that part of the business.

Birmingham City Council v Gaston EWCA Civ 693 [2004]

www.bailii.org/ew/cases/EWCA/Civ/2004/693.html

Work that is anticipated and regularly provided can be included within a service provision change even though it is not contractually guaranteed, as the following case illustrates:

Carillion provided routine services to a local council under a framework agreement to repair and install central heating and boilers. The agreement also covered higher value work that the Council was not obliged to offer and Carillion was not obliged to accept. In practice, Carillion did all of this work. When Lorne Stewart took over the contract, it argued that staff doing the higher value work did not transfer because there was no contractual obligation to offer or accept the work.

The EAT confirmed that the lack of a contractual obligation was irrelevant. What mattered was what was happening on the ground. Both claimants carried out work that was, or was intended in the future to be, carried out by the new provider after the transfer. As a result, they were included in the organised grouping of employees who transferred to the new provider.

Lorne Stewart plc v Hyde [2013] UKEAT 0408/12/0110

www.bailii.org/uk/cases/UKEAT/2013/0408_12_0110.html