The Employment Tribunal erred in finding that a group of managerial employees were assigned to an organised grouping that transferred under TUPE.
In London Borough of Hillingdon v Ms Anne Gormanley and others, the EAT was asked to consider whether a group of managerial employees were assigned to the organised grouping of employees who transferred under TUPE.
The three Claimants were in managerial positions working for various clients before working solely for London Borough of Hillingdon from 2012. They were employed by Robert Gormanley Ltd and were made redundant after Hillingdon terminated the contract. An employment tribunal ruled at a PHR that all of the Robert Gormanley Ltd employees had transferred to Hillingdon under TUPE. Hillingdon settled most of the claims, but appealed the finding in relation to the three Claimants on the ground that the tribunal had erred in finding that they were assigned to the organised grouping of employees that transferred.
The EAT found that the employment tribunal had erred by focussing on the fact that the employees were only doing work for Hillingdon at the time the matter was being considered. This was purely by "happenstance", as they had worked for other clients previously. Instead, the tribunal should have looked at Robert Gormanley Ltd's organisational structure, specifically how it was organised when it had more than one client. It should also have considered what the employees duties were under their contracts. The EAT was clear that it was material to consider the way in which the organisation was structured and what each of the Claimants' roles were within it in order to determine whether each employee was assigned to the organised grouping of employees carrying out relevant activities.
The case has been remitted to an employment tribunal to decide whether the Claimants were part of the organised grouping, based on the errors it had identified that the tribunal had made.
Points to note –
If there is a period of time where work is provided to one client, this in itself is not conclusive of there being an organised grouping to which employees are assigned. Consideration should be given as to how the work was organised when a service provider had multiple clients together with an assessment of what the contracts of each relevant employee required them to do in order to ascertain whether employees were assigned to that organised grouping, applying the principles set out in Eddie Stobart v Moreman  IRLR 356.