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.