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