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Inex Home Improvements Ltd v Hodgkins and others UKEAT/0329/14; (2015) EMPLR 064
28 September 2015
Employment Appeal Tribunal (EAT)
HHJ Serota QC, Mr D Bleiman and Ms N Sutcliffe
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.
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.
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.