Another TUPE case this month highlights the need for an "organised grouping of employees" in a service provision change case which has as its principal purpose the carrying out of the activities concerned on behalf of the client.
In this March’s decision in Eddie Stobart v Moreman and others it was held by the Employment Appeal Tribunal that employees who spent the majority of their time working for a particular client were not an organised grouping for the purposes of the TUPE Regulations.
Issues concerning the identification of an "organised grouping" have returned quickly in the shape of the latest EAT decision on the point. In Seawell Ltd v CEVA Freight (Uk) Ltd & Anor Ceva had a contract for the storage and supply of materials to Seawell for use on the oil platforms they operated. Mr Moffat worked for Ceva, and spent all his time on their contract, and a number of other Ceva employees spent varying amounts of time on Seawell work, but most of their time on other clients’ work. Seawell took the work back in house and ended the contract. Ceva maintained that there was a service provision change, and told Mr Moffat to report to Seawell after the changeover, but Seawell would have none of it, and Mr Moffat found himself without a job. He succeeded in an Employment Tribunal claim against Seawell but failed on appeal.
The EAT held that in this case there was no organised grouping of employees – just because one man spent all of his time on a particular contract did not make him an organised grouping. As Lady Smith remarked:
It remains my view that the description "organised grouping of employees" connotes a deliberate putting together of a group of employees for the purpose of the relevant client work – it is not a matter of happenstance "
Mr Moffat was not left without a remedy: it was found that Ceva had unfairly dismissed him, and the case was sent back to the tribunal to decide on compensation. Perhaps Ceva would have been better to look at the situation as one where there was a redundancy following loss of the contract – they would then have had a chance of establishing that it was fair to dismiss Mr Moffat (or another person fairly selected from an appropriate pool) and just pay him a statutory redundancy payment.