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TUPE - Organized Grouping of Employees

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[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

If an employee works 100% of his time for a single client, is he necessarily assigned to an organised grouping of employees for the purposes of a service provision change and the transfer of his employment under TUPE?

No, says the EAT in Seawell v Ceva.

The claimant (Mr Moffat) was employed by Ceva Freight (UK) Ltd, which provided logistics and freight forwarding arrangements for Seawell, which owned offshore drilling platforms. Seawell then terminated this arrangement and took the service back in house. Seawell was not the only client of Ceva, but Mr Moffat spent 100% of his time on the Seawell contract, with other employees spending smaller percentages of time on this contract and the rest of their time on other contracts. An employment tribunal found that either Mr Moffat himself could comprise an organised grouping of employees or, alternatively, if the organised grouping of employees included Mr Moffat and colleagues, Mr Moffat was assigned to that organised grouping of employees as he spent 100% of his time on the service. On these alternative bases he transferred under TUPE.

The EAT disagreed. There was no basis for finding in this case that there was a group of employees specifically organised for this particular contract. An organised grouping of employees denotes a deliberate putting together of a group of employees for the purpose of the relevant client work. As the EAT put it: "it is not a matter of happenstance".

There was no such conscious employee grouping  on the facts of the case. As such there was no service provision change and no relevant transfer. In this regard, the previous EAT authorities of Argyll Coastal Services v Stirling (EAT S/0012/11) and Eddie Stobart Limited v Moreman (EAT/0223/11) were to be followed.