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TUPE – Carrying out of activities transferring
The Court of Session has upheld the EAT decision in Ceva Freight UK Limited v Seawell Limited that an individual who spends all his time providing services to a customer would not necessarily transfer under regulations 3(1)(b) of TUPE in circumstances where other employees also provided the service.
Ceva provided inbound and outbound services to Seawell who then decided to in source their services. Mr Moffat spent all his time on the outbound services and other employees spent part of their time providing the same service to Seawell. The Court considered regulation 3(3)(a)(i) and held that where the activities are carried out by the collaboration, to varying degrees, of a number of employees who are not organised as a grouping which has its principle purpose the carrying on of the activities for the client, it is not permissible to isolate one of those individuals on the basis of that individual in question devoting all or virtually all of their time assisting in the collaborative effort.
The Court agreed with the view of the EAT in Eddie Stobart Limited v Moreman that the concept of an organised grouping “implies that there be an element of conscious organisation by the employer of his employees into a grouping – of the nature of a team – which has as its principle purpose the carrying out de facto of the activities in issue”.
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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