It depends what their roles are and what services are transferring according to the EAT in the case of Edinburgh Home-Link Partnership & Ors -v- The City of Edinburgh Council & Ors 2012.
In this case, two organisations provided services to the homeless or those at risk of homelessness under contract with Edinburgh Council. Edinburgh Council was their only client. There were 35-40 employees delivering frontline services and two directors who undertook management roles which included maintenance of the organisations, strategy and training and minimal frontline work. In 2009 Edinburgh Council decided to take the frontline service in-house and the frontline staff transferred under Regulation 4(1) of TUPE to the Council. The directors alleged that they too should have transferred because they were assigned to the organised grouping of employees of employees which had as its purpose the carrying out of the activities concerned for the Council. The EAT held that it was the frontline services which were the activities which transferred under TUPE and as a matter of fact any front-line services the directors undertook was ancillary to their main role of supervising and running the operation. As a result, they were not assigned to the organised grouping of employees and did not transfer.
This case is a further reminder that the definition of what "activities" are being contracted for is crucial in determining who carries them out on behalf of the client. If the activities are clearly and narrowly defined, other employees with peripheral roles will not transfer under TUPE; just because the majority of employees would transfer, it does not follow that everyone would. In this case if the Council had agreed to take back "front-line and associated management and supervisory services" the directors would probably have been found to be assigned.