The EAT in London Borough of Hillingdon v Gormanley emphasised that, in considering whether employees are assigned to an "organised grouping of employees" so that they potentially transfer under TUPE, the tribunal must look at the contractual duties of each claimant and their role in the organisational framework.
The claimants were three members of the same family carrying out painting and decorating work under a contract with Hillingdon. When Hillingdon decided to take the work back in-house, the tribunal found that there was a service provision change and the claimants were assigned to the group transferring to Hillingdon. But the evidence showed that the claimants could be called upon to perform duties other than for the Hillingdon under their contracts of employment. It was very relevant that two of the three carried on working for the employer for six months after the Hillingdon contract was lost. As a result, the tribunal's ruling that the employees were assigned to the client contract had to be set aside.