TUPE - Organised Grouping of Employees

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

In deliberating whether there has been a service provision change under Reg 3 (1) (b) of TUPE 2006, is it sufficient to say that employees will transfer if, simply, they "go with the work"?

Not so says the EAT in Eddie Stobart Ltd v Morman (Underhill P presiding).

There needs to be analytical distinction between an organised grouping of employees (TUPE, Reg 3 ((3) (a)), on the one hand and, on the other, whether employees are assigned (Reg (4 (1))to it.

ES was a warehousing and logistics service provider. It had 35 employees at one site in Nottinghamshire servicing at least 5 clients. The contracts reduced to two, the principal one relating to Vion. ES closed the site. FJG Logistics Ltd picked up the Vion work. ES took the view that all employees engaged wholly or 50% plus of their time on Vion work should transfer to FJG.

The EAT held that it is necessary to identify an organised grouping of employees in advance of the question of which employees were assigned to it. Here, the employees were "organised" as to their shifts, not as to a particular customer. A paradigm example of an organised grouping of employees would be where there was a particular client "team" dedicated to the client. Such was not the case here.