Only organised groupings of employees, whose principal purpose is carrying out activities for a particular client, will be transferred under the service provision change sections of TUPE, and Eddie Stobart Ltd. v Moreman sheds useful light on what amounts to an “organised grouping” for this purpose.
The case was brought by 35 workers in a meat warehouse operated by Eddie Stobart Limited. They worked on warehousing contracts for a number of suppliers of meat to supermarkets, picking the meat to be supplied. Eddie Stobart shut down this warehousing operation. At the time of the shutdown, work patterns meant that those workers working day shifts did most of the work for one particular supplier, Vion. When Vion entered into a contract with another logistics company, Forza, to take on this work, Eddie Stobart took the view that these workers would be transferred by the operation of TUPE to Forza. Forza, however, disputed this interpretation.
The question to be decided was whether it was enough that there was a group of employees who, in practice, mostly worked on a set of tasks for one particular customer, or whether something more solid was required. The Employment Appeal Tribunal confirmed the decision of the employment tribunal that a mere combination of circumstances would not engage the service provision change provisions of TUPE: the statutory language calls for an element of deliberate planning or intent to gather the grouping together to perform a body of work.
The employees had therefore not transferred to Forza and had been unfairly dismissed by Eddie Stobart.
Does this mean that, in general, a group of employees working on particular tasks will not be treated as having transferred within the scope of TUPE. Regular readers know the answer: of course not! TUPE and employment status cases (see our article this month on the latter conundrum) remain among the most impenetrable and unpredictable areas of law in any sector, let alone employment law.