Inex Home Improvements Ltd v Hodgkins and others UKEAT/0329/14; (2015) EMPLR 064
Employment Appeal Tribunal (EAT)
HHJ Serota QC, Mr D Bleiman and Ms N Sutcliffe
Employees who are ‘assigned’ to the ‘organised grouping of employees’ whose activities transfer to another service provider transfer to that new service provider under TUPE. Here the EAT holds that employees who are laid off because of a shortage of work before the transfer are nevertheless ‘assigned’ to the organised grouping of employees and so transfer under TUPE.
Building work under a contract was released to Inex in tranches. Work under one of those tranches was completed but no new tranche of work was released. So there was no work for the employees and they were laid off under the rules of a national agreement. Employees were told further work would be available within a month or two. Following a disagreement between Inex and the main contractor, the next tranche of work, substantially similar to that previously carried out by Inex, was given to another contractor.
The employees complained that they should have transferred to the new contractor under TUPE. The tribunal held that, at the time of the service provision change, they were not part of any organised grouping of employees carrying out the work because they were all laid off.
The EAT disagreed. The fact that employees were laid off at the time of the transfer did not prevent them being an ‘organised grouping of employees’ carrying out the activities that transferred. The question the tribunal should have asked was whether the organised grouping still maintained its identity despite the lay-off. Relevant factors would be the length of the lay-off, the reasons for it and whether employees in the grouping had found other employment so that there was no longer a cohesive grouping available to resume the work. The case was remitted to the tribunal to reconsider.
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