TUPE service provision changes

Thanks to Nathaniel Caiden of Cloisters for preparing this case summary Does the percentage of time an employee spends on an activity immediately before an SPC transfer establish assignment? No, held the EAT in Costain Ltd v Armitage and ERH. The Claimant was a Project Manager at ERH managing telecommunications projects under two contracts for the same Client (the Welsh Assembly). Only one contract provided guaranteed work: that transferred to Costain. Whilst Costain accepted that there was an organised grouping of employees to which the majority of employees were assigned it distinguished the Claimant as an unassigned trouble-shooter. The employment tribunal found that the Claimant's employment had transferred on the basis that "immediately before the transfer" 67% of his time was spent on the transferring activity. The EAT considered the tribunal's reasons to be inadequate. The need for conscious organisation applies just as much to the assignment question as to the identification of an organised grouping of employees in the first place. A "bright lines" approach needed to be adopted at all stages: a snapshot of "time spent" failed to provide any certainty as to whether there was deliberate planning of the Claimant's work in line with the activity. Conversely, the fact that an employee is only spending a minority of his time on the activity immediately before transfer does not preclude assignment. The matter was remitted to a fresh employment tribunal.