In Edinburgh Home-Link Partnership v City of Edinburgh Council the EAT upheld a finding that senior managers of a company providing services to a local Council were not assigned to the "organised grouping of employees" that provided those services. They were therefore not transferred under TUPE to the Council when the services were taken in-house, even though the Council was the company's only client.
The claimants were directors and employees of a company which provided various services for homeless persons to the Council. The claimants were largely responsible for strategic operation and although they had some line responsibility for employees, they were not providing those services themselves. When the services were brought back in-house, it was accepted that there was a TUPE transfer in relation to staff but the question at issue was whether the claimants were assigned to the "organised grouping of employees" so as to be included in the automatic transfer. The Tribunal and EAT agreed that they were not. The fact that the company had a single client did not automatically lead to the conclusion that the work carried out by the claimants was part of the delivery of services on behalf of the client. For example, they spent a significant amount of time on tendering, an aspect of their duties that was clearly not related to the Council contract, even though the work was necessary to allow the services to be provided.
One word of warning on this case – there were some problems with the evidence and it would be premature to lay down a general rule that employees with managerial rather than frontline duties will not be assigned.