Posted by Gemma Ospedale, Partner
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TUPE – employee was not part of organised grouping of employees
In Costain Limited v Armitage and another, the EAT has overturned a Tribunal decision which found that the employee concerned was part of an organised grouping of employees which transferred to a new contractor under a service provision change.
The employee was responsible for managing various projects, one of which was the contract which transferred to the new employer under TUPE, and the rest which did not. The EAT considered that the Tribunal had not undertaken a proper analysis of defining the organised grouping of employees and determining whether this employee was assigned to that group. It had reached a broad conclusion without distinguishing between the transferring contract and the contracts which did not transfer; and it also placed too much emphasis on the percentages of time which the employee spent on the transferring contract compared to the other ones, which were put forward by the parties. The EAT considered it was not possible to determine whether the Tribunal had applied the correct test.
Interestingly, the EAT made a costs order in favour of the successful Appellant relating to the issue and hearing fees incurred by it.
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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