John McMullen examines the latest round of judicial activity on TUPE
There seems to be no ebb in the tide of cases on the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE). As usual, the concepts of service provision change, and changing employment terms following a TUPE transfer, feature significantly.
Assignment
In deliberating whether there has been a service provision change (SPC) under reg 3(1)(b) of TUPE is it sufficient to say that employees will transfer if, simply, they “go with the work”? Not so, said the Employment Appeal Tribunal (EAT) in Eddie Stobart Ltd v Moreman [2012] UKEAT/0223/11. Instead, there needs to be an analytical distinction between an organised grouping of employees (reg 3(3)(a)(i)) on the one hand and, on the other, whether employees are assigned (reg 4(1)) to it. Both of these issues need to be addressed in an SPC case.
Eddie Stobart (ES) is a warehousing and logistics service provider. It had 35 employees at one site in Nottinghamshire servicing at least five clients.
