TUPE Update

Date Added 02.07.13

In the recent case of Ceva Freight (UK) Ltd v Seawell Ltd [2013] CSIH 59, the Court was asked to consider whether a single employee at a multi-client site who spent 100% of his time working for one client was an organised grouping.

The employee was employed by Ceva, who organised their services into inbound and outbound teams. The employee worked on the outbound team but worked solely for the Seawell account but the rest of the employees on the outbound team spent between 10-30% of their time on the Seawell account.

When Seawell looked to bring their work back in house, Ceva argued that the employee was in scope to transfer under TUPE.

On appeal, the EAT held that there had been no transfer as it was the team and not the employee who was deliberately organised and the team did not have the Seawell account as their principal purpose.

Upon further appeal, the Court agreed with the EAT in that the employee carried on the activities as part of a team whose main focus was to provide services for a number of clients; he was not deliberately organised.

Although it was acknowledged that a single employee can form part of an organised grouping, this is only where the activities are wholly carried out by a single employee for the client, which was not the case in this instance.

The case provides further consideration for employers who are considering whether TUPE applies, particularly in multi client situations and highlights the importance of looking at the group of employees when they work as a team and not just individual employees in isolation. The question is then whether the team are an organised grouping that has as its principal purpose the carrying out of activities for the client.  It is only where activities are carried out by a single individual that they can be classed as an organised grouping of one. It also highlights to employers the importance of paying consideration to the ‘principal purpose’ point and just because an employee is carrying our work for a particular contract will not guarantee that TUPE will apply. Employers may wish to review their workforce to see if individuals are organised by reference to client or teams and if work is carried out for other clients by individuals.

If you have any questions on TUPE then please contact the Employment Law Team on 01604 258558.

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