Service Change Provision And TUPE Update - "Organised grouping" can include employees temporarily laid off
For a service provision change transfer to apply under TUPE 2006 there must be an organised grouping of employees whose principal purpose is carrying out the relevant activities on behalf of the client (Regulation 3(3)).
In this case, construction workers were employed on the ‘Sandwell’ contract which had been subcontracted to Inex by Thomas Vale. Work was given on a project basis and there was temporarily no work for some of the workers. Under the terms of a national agreement for the construction industry, the employees continued to receive remuneration for a limited period where there was a temporary layoff.
Thomas Vale then decided to change providers and decided to no longer use Inex and instead sent the next Works Order to Localrun (a different building contractor). The work was substantially the same as in the previous Works Order that had been placed with Inex.
This case was brought in the Employment Appeals Tribunal (EAT). A number of staff did not transfer as they were no longer considered an organised grouping - because they were not working at the time immediately prior to the transfer, having temporarily been laid off.
The EAT held that this was a service provision change under TUPE. When construing the service provision change provisions in TUPE 2006 regard must be had to the expressed purpose of the Regulations apparent from the title (Transfer of Employment (Protection of Employment) Regulations). The service provision change provisions were intended to provide protection for the employment of relevant employees of the original contractor and this had to be taken into account when construing the Regulations.
Inex Home Improvements Ltd v Hodgkins and others UKEAT/0329/14
Posted on 12/05/2015 by Ortolan
