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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
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.
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
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.