Can TUPE Apply To One Employee?

To be considered a relevant transfer under TUPE, the regulations state that before a service provision change, there is an “organised grouping of employees” situated in Great Britain, whose principal purpose is carrying out work on behalf of the client.

The regulations themselves do state that it is possible for one employee to be considered an organised grouping of employees, and as such, that employee will transfer under TUPE.

What constitutes an organised grouping?

In the case of Eddie Stobart Ltd v Moreman and others [2012], the Employment Appeals Tribunal held that for employees to constitute an organised grouping, the fact that they carry out their work for one particular client will not be sufficient.

Employees must be organised giving consideration to the requirements of that particular client and be clearly identifiable as members of that client team.

This approach was reiterated in the case of Seawell Ltd v Ceva Freight (UK) [2013].

In this case, an employee of Ceva, Mr Moffat spent all of his time working on one contract for Seawell.

While there were other members in his team, he was the only employee who worked exclusively on the Seawell contract.

When Mr Moffat was dismissed, an employment tribunal concluded that his employment had transferred to Seawell under the TUPE regulations, as it was found that he was “an organised grouping of employees whose principal purpose was carrying out services for Seawell.”

Seawell was found liable for the employee’s unfair dismissal, and Ceva and Seawell were both jointly liable for failing to inform and consult the employee during the TUPE transfer.

Seawell appealed the decision. The Employment Appeal Tribunal found that:

• There was a service provision change;
• Mr Moffat had been unfairly dismissed;
• The tribunal had failed to apply the relevant TUPE regulation correctly.

The reasoning behind their decision was based upon the fact that Mr Moffat worked as part of a larger team, and isolating one employee on the basis that he devoted all of his time to one contract was not legitimate.

For a sole employee to transfer under TUPE, it is not enough to show that they spend all of their time working for one particular client, as case law has demonstrated, this will not amount to a relevant transfer.

Instead, there must be evidence that the employer specifically formed that group or team for principally carrying out work for that particular client.

Summary:

For a sole employee to transfer under TUPE, it is not enough to show that they spend all of their time working for one particular client, as case law has demonstrated, this will not amount to a relevant transfer.

Instead, there must be evidence that the employer specifically formed that group or team for principally carrying out work for that particular client.