As is well known, since 2006, TUPE has applied where a client decides to engage a new service provider instead of an existing one but what if the client instructs the existing service provider to remove an employee (or a group of employees) from the contract before the TUPE transfer takes place? Do they remain assigned to the group of employees who provide the service? Do they transfer to the new service provider?

As is so often the case in TUPE, the answer is that ‘it all depends’. So, for example, in Robert Sage Ltd t/a Prestige Nursing Care Ltd v O’Connell [2014] IRLR 428 where the claimant was suspended at the time of the transfer and, importantly, the employer accepted the request/instruction of the local authority, the EAT ruled that the employee was not assigned to the transferring group of employees at the time of transfer and therefore did not transfer to the new employer.

On the other hand, the position may be different where the request/instruction is disputed by the current employer: In Jakowlew v (1) Nestor Primecare Services Ltd t/a Saga Care and (2) Westminster Homecare Ltd (UKEAT/0431/14), the Claimant was employed by Saga Care as a Care Manager at its Enfield branch office, working principally on a contract with the London Borough of Enfield. When the contract came up for renewal, Saga decided it did not wish to renew the contract and Westminster successfully bid for the contract. The Claimant was told that she would transfer to Westminster. There had however been a problem at Saga’s Enfield branch office which resulted in the Claimant and two other employees being suspended on full pay.

Not long before the transfer date, Enfield wrote to Saga that, in accordance with the terms of the contract, Saga was to remove the three members of staff from working on the contract. Saga, however, disputed that instruction.

Shortly before the transfer date, Saga held a disciplinary hearing, the outcome of which was that the Claimant was reinstated with a disciplinary warning. The issue was whether in these circumstances, the Claimant was assigned to the grouping of employees who transferred to Westminster? The ET said “no” because of Enfield’s instruction. But in the EAT, I argued that Enfield was not the Claimant’s employer and therefore she transferred. The EAT agreed HHJ Richardson saying “ I do not think that the unilateral instruction of a third party in itself has that effect. It is the employer or those whom the employer has authorised who decide to what grouping of workers an employee is assigned”. 

Article written by No5 Barrister, Anthony Korn.