Assignment of employees in TUPE – who transfers?

The problem

A relatively common problem in TUPE transfers is identifying who should transfer with the undertaking at the date of transfer.  This is often complicated by the fact that the transferee may not want all or some of the employees who may well be subject to the transfer itself.

The principle

In the case of Jakowlew v Saga Care the claimant worked for Saga as a care manager.  The care manager was principally employed to provide services for the London Borough of Enfield.  Shortly before Saga's contract with the Council finished and was transferred over to Westminster Home Care Limited by the Council, the claimant fell out with her line manager resulting in a suspension.  The Council asked Saga to remove her from the contract as was their right under the agreement between the Council and Saga.

Saga challenged this stating that the employee could only be removed from the contract after the transfer date.

The EAT found that those employed or assigned to the contract should transfer and found that the claimant in this case should have transferred also.  This is because Saga had not acted on the Council's request and it is for the employer to decide to what grouping of workers an employee is assigned and thus whether they then transfer.

The practice

It is not for the "client" to dictate who is assigned to an organised grouping or employees for the purposes of the TUPE transfer.  There may well be ways around this post-transfer (for example a some other substantial fair reason dismissal due to third party pressure) but otherwise transferees will not be able to dictate who should and should not transfer to them.  Provided the employee can be shown to be assigned to the transferring undertaking the transferee has no right to pressure a transferor into deciding who should transfer.

For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected]