The claimant in Jakowlew v Nestor Primecare Services Limited t/a Saga Care worked for Saga, a provider of care services to Enfield Borough Council. A TUPE transfer was due to take place to another provider on 30 June 2013 and the claimant was told that she would transfer. However, following an incident at work, the claimant and two other employees were suspended. On 19 June, in accordance with its contractual right, Enfield instructed Saga to remove the three employees from the team providing services. Saga initially disputed Enfield's instruction, although they later took disciplinary action against the claimant, accepted that her employment had not transferred and made her redundant in September.
The claimant brought an unfair dismissal claim against both Saga and the new provider. The issue for the Tribunal was whether, despite Enfield's instruction to Saga to remove her from the service provision, the claimant was assigned to the "organised grouping" of employees immediately before the transfer. The EAT, overturning the Tribunal decision, found that she was.
The test as to whether an employee who is temporarily absent from work is assigned to the transferring group is whether the employee would be required to work immediately before the transfer if able to do so. Here the employer had not removed the claimant from the contract and had initially disputed the instruction to do so. Immediately before the transfer she would have been required by her employer to work in that group (if she had not in fact been suspended at the time). As a result, she remained part of the organised grouping and transferred to the incoming provider.
The EAT noted that TUPE applies to transfer those "employed by the transferor and assigned to the organised grouping of resources or employees" – assignment means assignment by the employer, not by the unilateral act of the client without the employer's intervention or authority. The fact that Saga might have been at risk of a breach of contract claim from the client was irrelevant. As the EAT pointed out, Enfield had, after the date of the transfer, relented in the case of one of the other two suspended employees and it would have been odd if she too had lost her TUPE protection as a result of Enfield's instruction.