No, says the Court of Session in Ceva Freight UK Limited v Seawell Limited, upholding the decision of the EAT.
Ceva provided inbound and outbound services to Seawell who then in-sourced those services. Mr Moffat spent 100% of his time on the outbound services in a supervisory role. Other employees of Ceva spent part of their time providing the same services to Seawell.
The Court considered regulation 3(3)(a)(i) and ruled that where the activities are carried out by the collaboration, to varying degrees, of a number of employees who are not organised as a grouping having as their principal purpose the carrying out of the activities for the client, it is not legitimate to isolate one of that number on the basis that the employee in question devoted all, or virtually all, of his working time to assisting in the collaborative effort.
The Court agreed with the view expressed by the EAT in Eddie Stobart Ltd v Moreman that the concept of an organised grouping “implies that there be an element of conscious organisation by the employer of his employees into a grouping – of the nature of a “team” – which has as its principal purpose the carrying out de facto of the activities in issue.”
The Court was not persuaded by Mr Moffat’s job description which indicated he was employed for the purpose of enabling the contract with Seawell to be performed.