Where an organisation is to take over the delivery of a service, workers who currently do that work sometimes transfer over to that new service provider. It’s a fundamental rule of TUPE. However, only workers who are assigned to an “organised grouping of employees” make the move. A recent case examines this in more detail.
Where an organisation is to take over the delivery of a service, workers who currently do that work sometimes transfer over to that new service provider. It’s a fundamental rule of TUPE. However, only workers who are assigned to an “organised grouping of employees” make the move. And that was the key point in this case.
Mr Hodgkins was employed by Inex. Work was subcontracted to Inex in tranches by a company called Thomas Vale. There was a pause in the work supplied and Inex laid Mr Hodgkins and some of his colleagues off under the terms of a construction industry national agreement. It was a temporary stoppage and Inex continued to employ them.
When Thomas Vale issued its next batch of work (which was pretty much the same work as Inex had previously completed), it went to a different subcontractor. Had Mr Hodgkins and colleagues transferred to that new subcontractor?
The tribunal held not; they weren’t an organised grouping working on Thomas Vale’s contract immediately before the service passed to the new subcontractor. The Employment Appeal Tribunal took a different view, however. Just because there has been a temporary absence from work, or work has stopped, that doesn’t mean that there can’t be an organised grouping of employees who had been involved in the relevant activities. They don’t have to have been engaged in those activities immediately before the transfer.
