Posted by Gemma Ospedale, Partner
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Assignment of employees under TUPE
In Jackowlew v Saga Care, the EAT considered, where TUPE applied, whether the “client” or end user could dictate who is assigned to the organised grouping of employees for the purpose of the transfer – and concluded that it could not.
The Claimant was a care manager working mainly on a contract with the London Borough of Enfield. Shortly before this contract ended and Saga commenced a contract with Westminster Homecare Limited, the Claimant was suspended after falling out with her line manager. Enfield asked Saga to remove her from the contract, as was its right under the agreement. Saga sought to challenge this, arguing that this could only happen after the transfer date. Both parties agreed that TUPE applied.
The question therefore was whether the Claimant’s employment transferred to Enfield in circumstances where they had requested 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 transfer, she remained assigned and should herefore transfer. The Judge held that it is for the employer or the individual authorised by the employer to decide which grouping of workers to which an employee is assigned.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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