Thanks to David Leslie of Lyons Davidson for preparing this case summary.
In a TUPE scenario, can the 'client' dictate who is assigned to an organised grouping of employees for the purpose of the transfer?
No, held the EAT in Jakowlew v Saga Care.
The Claimant worked for Saga as a care manager, principally on a contract with London Borough of Enfield. Shortly before the contract finished with Saga and started with Westminster Homecare Ltd, the Claimant fell out with her line manager and was suspended. Enfield asked Saga to remove her from the contract, as was their right under their agreement. Saga sought to challenge this, only agreeing that the Claimant could be removed from the contract after the transfer date.
It was common ground that TUPE applied such that employees assigned to the Enfield contract would transfer from Saga to Westminster. The question, therefore, was whether the Claimant's employment also transferred where Enfield had requested, in effect, that it did not. The EAT found that as Saga had not acted on Enfield's request to remove the Claimant from the contract at the date of the transfer, she remained assigned and should transfer. HHJ Richardson held that 'It is the employer or those whom the employer has authorised who decide to what grouping of workers an employee is assigned'.