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Employment Law

Legal guidance - compliance - software

05 NOV 2015

Jakowlew v Nestor Primecare Services Ltd UKEAT/0431/14; UKEAT/0432/14; [2015] IRLR 813; (2015) EMPLR 056

Jakowlew v Nestor Primecare Services Ltd UKEAT/0431/14; UKEAT/0432/14; [2015] IRLR 813; (2015) EMPLR 056
22 April 2015

Employment Appeal Tribunal (EAT)

HHJ David Richardson

Employees who are assigned to an organised grouping of employees:

  • whose principal purpose is to provide services to a client, and
  • the activities of which transfer to another employer 
transfer to the new employer under reg 3(1)(b) of TUPE.

In this case, the EAT says that a temporary disciplinary suspension does not prevent a person from being ‘assigned’ to the grouping to be transferred.

NPS provided care services to a local authority. J, an NPS employee, was suspended after an incident in February 2013. In June 2013 (while J was still suspended), a new provider took over the contract. J claimed she should transfer under TUPE.

The case was resisted on the ground that the local authority had instructed NPS to remove J from the contract. That argument failed. An instruction from one party to a contract to another, whether permitted by the contract or not, cannot override TUPE. But the EAT added that the employers might have argued that J should not have transferred because her suspension removed her from the ‘organised grouping of employees’. The EAT said that argument would have failed, because J was still assigned to that grouping and would have returned to it when her suspension ended.

Comment: Suppose, in order to accommodate a suspension, the employer re-organises who is to work on a contract that is to be transferred? There is now a different ‘organised grouping of employees’ from that before the suspension. Which grouping transfers? Logic suggests the organised grouping at the date of the transfer - which would exclude anyone who is suspended.

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