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Can the client decide who transfers under TUPE?

18 June 2015 #Employment


In Jakowlew v Saga Care, the client local authority issued an instruction to its contractor requiring it to remove the Claimant, a care worker, from the contract.

The contractor, Saga, challenged this instruction, a couple of weeks before a TUPE transfer and the instruction was not complied with by the time of the transfer. The Claimant was part of the organised grouping that transferred. The Employment Judge held that by virtue of the instruction of the London Borough of Enfield, the Claimant was no longer assigned to the organised grouping and so did not transfer.

However, this decision was reversed on appeal. The EAT found that as Saga had not acted on Enfield's request to remove the Claimant from the contract at the date of the transfer, she remained assigned and therefore transferred. The EAT held that  it is the employer or those whom the employer has authorised who decide who is assigned to the organised grouping in a TUPE scenario.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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