As part of our “TUPE takeaway” series, we look at a recent Employment Appeal Tribunal decision which held that there was an “organised grouping” despite a lack of evidence on how the workforce was organised.
Under the Transfer of Undertakings (Protection of Employment) Regulations 20026, a service provision change (such as a change in service provider) can only happen where, immediately before the transfer, there is an “organised grouping” of employees based in Great Britain whose principal purpose is to provide the service. Only employees who are permanently assigned to the grouping will transfer.
There have been several previous decisions on what is required for there to be an “organised grouping”. These decisions point to a requirement for a conscious, deliberate decision being made by the transferor to organise the employees in a particular way for a particular client.
Case law has established that it is not sufficient for employees to spend most of the time working for a particular client if, for example, it is a consequence of their shift patterns (rather than a decision based on the client’s requirements).
The EAT has now considered the issue again in Mach Recruitment Ltd v Oliveira and shed some further light on the level of organisation required.
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