TUPE – who decides whether an employee who is subject to disciplinary proceedings is in or out of an “organised grouping”? article banner image

The case of Jakowlew v Saga Care has interesting, but not uncommon facts.  Mrs Jakowlew had been working for Saga on a contract for the London Borough of Enfield along with a group of other employees.  Saga was to cease doing this work, which was instead to be undertaken by Westminster Homecare Limited.

One of the situations in which TUPE will apply is where activities cease to be carried out by a contractor (in this case Saga) on a client’s (Enfield’s) behalf, and are carried out instead by another contractor (Westminster Homecare) on the client’s behalf.  TUPE therefore applied on this occasion.  A key right under TUPE is the “automatic transfer principle” whereby employees transfer to the transferee (in this case Westminster Homecare) who inherits all rights, liabilities and obligations in relation to the employees, including the right not to be unfairly dismissed.

However, before the transfer took place Enfield told Saga that they did not want Mrs Jakowlew to work on the contract any more because Mrs Jakowlow and another employee of Saga’s had fallen out with her line manager.  Under their contract Enfield were permitted to “instruct the Contractor to or to remove from work in or about the provision of the Services any person employed by the Contractor.”  However, Saga refused to accept this request, although they did suspend Mrs Jakowlew while they undertook an investigation.  The transfer to Westminster Homecare was due to take place on 1 July 2013.  A disciplinary hearing took place on 27 June, the outcome of which was that Mrs Jakowlew received a written warning for conduct, although this was not confirmed in writing until 5 July.  Some confusion arose as to whether Mrs Jakowlew had transferred or not, but Saga continued to pay her until she was dismissed by reason of redundancy in September 2013. In the interim Mrs Jakowlew was told by Westminster Homecare that she had not TUPE transferred with her workmates and that she did not have a job with them.  Mrs Jakowlew brought claims for unfair dismissal against Saga and Westminster Homecare.

The Employment Tribunal found that Mrs Jakowlew had not TUPE transferred to Westminster Homecare because Enfield had asked Saga that she been removed from working on their contract, so she could not have transferred with her colleagues.  The EAT overturned that decision, noting that Saga had never complied with Enfield’s instruction to remove Mrs Jakowlew from the group working on their project, they had merely suspended her, and at some point Mrs Jakowlew may have been able to recommence work at Enfield.  This could have risked a breach of contract allegation by Enfield but it was for Saga to determine whether or not she was assigned to the contract. The EAT made clear that it was for the employer, not the client, to decide which employees were assigned to a grouping of employees.  The EAT clarified that the test for whether an employee has TUPE transferred or not is: “whether, immediately before the transfer, the employee would have been required by the employer to work in that group if he had not been excused from attendance.”  Accordingly, Mrs Jakowlew had TUPE’d to Westminster Homecare and had been unfairly dismissed.

This case is a reminder to transferee employers in a TUPE situation of the importance of asking for, and receiving,  accurate information about any and all ongoing capability and conduct procedures in respect of individuals who fall within an organised grouping due to transfer to them.  Ideally all such processes should be finalised prior to any transfer taking place.

The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk