Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) and another UKEAT/0431/14

Why care?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) operate to transfer the employment of those who are "assigned to the organised grouping of ... employees that is subject to the relevant transfer" on their existing terms and conditions (regulation 4(1)).

In this case, the EAT had to decide whether a client's instruction to a service provider to remove a particular employee from the group of employees carrying out the service (although the employer had not done so) meant that the employee was no longer assigned to the "organised grouping of employees" for the purposes of a service provision change under TUPE.

The case

The claimant worked for Saga as a care manager, principally on a contract with London Borough of Enfield. The parties agreed that TUPE applied so that employees assigned to the Enfield contract would transfer from Saga to Westminster Homecare Ltd. Shortly before the contract finished with Saga and started with Westminster, the claimant fell out with her line manager, was suspended and then issued with a final written warning one working day prior to the expiry of the contract with Enfield. At the hearing, the claimant was also advised that her employment would transfer to Westminster by virtue of TUPE. However, Enfield asked Saga to remove her from the contract, as was their right under their agreement. Saga objected to this, only agreeing that the claimant could be removed from the contract after the transfer date.

Following the change in service provider, there was considerable confusion between the parties as to whether or not the claimant's employment had, in fact, transferred. Saga continued to pay her throughout and finally dismissed her on grounds of redundancy. The claimant asserted that her employment had transferred to Westminster under TUPE and brought unfair dismissal claims against both Saga and Westminster. However the employment tribunal held that the instruction issued by Enfield had effectively removed the claimant from the provision of the service. Accordingly, she was no longer employed in the organised grouping of employees at the time that Saga ceased to provide the services. Her employment had not transferred and she remained an employee of Saga.

The claimant appealed to the EAT. It overturned the tribunal's decision, upheld the appeal and held that the claimant's employment had transferred. The EAT found that as Saga had not acted on Enfield's request to remove the claimant from the contract at the date of the transfer; she remained assigned and should transfer. HHJ Richardson held that "It is the employer or those whom the employer has authorised who decide to what grouping of workers an employee is assigned". It distinguished the earlier case of Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O'Connell and others UKEAT/0336/13, in which the service provider had in fact removed the client from the provision of the service on the client’s instructions and he was therefore no longer assigned to the grouping. While in Robert Sage the employer had acted on the client's instructions, in this case, Saga had not.

The EAT concluded that the tribunal had made an error of law in disregarding Saga's actions on receipt of the instruction from Enfield and in finding that Enfield's instruction alone had the effect of re-assigning her. Accordingly, the EAT substituted a finding that the claimant was assigned to the organised grouping and that her employment had transferred to Westminster.

What to take away

Since Saga had refused to act on the instruction of its client, Enfield, to remove the claimant from the provision of the service, she had not been re-assigned and therefore her employment transferred to the new service provider under TUPE. However, had she actually been removed, then she would have fallen outside the organised grouping.