One of the difficult issues in TUPE transfers is to decide which employees are assigned to the grouping of employees who transfer to the new employer, particularly if the client has given an express instruction that it does not want a particular employee (or group of employees) to continue to work on the contract.
The issue in the recently reported case of Jakowlew v (i) Nestor Primecare Services Ltd t/a Saga Care and (ii) Westminster Homecare Ltd (UKEAT/0431/14) was whether Mrs Jakowlew, who worked at care homes run by Nestor transferred to Westminster after the client, the London Borough of Enfield, had issued an instruction that she should be removed from the contract?
At the time the instruction was given, Jakowlew was suspended from work but shortly before the transfer (which was agreed to be a service provision change), she was disciplined and reinstated in her job. Furthermore, Nestor had written to the client indicating that it did not accept the instruction.
In these circumstances, the EAT, having reviewed earlier caselaw, ruled that Jackowlew remained an employee of Nestor and transferred to Westminster homecare.
Anthony Korn represented Jakowlew in the appeal tribunal.
