Edinburgh Home-Link Partnership & Ors v The City Of Edinburgh Council & Ors (Transfer of Undertakings : Transfer)

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, assignment is an individual and fact-sensitive inquiry. A service provision change involving a single client does not mean that every employee of the contractor transfers.

The decisive question is whether the employee was assigned to the organised grouping whose principal purpose was to carry out the activities contracted for by the client. Work which maintains the transferor as a corporate entity, including strategic, regulatory or tendering work, is not enough merely because it facilitates the client service. A causal connection with that service does not establish assignment.

An assignment which is temporary is excluded by the definition of “assigned”.

The Council brought specified housing-support activities in house on 27 April 2009. The first appellant had previously supplied those activities to the Council under annual service level agreements. It was accepted that this was a service provision change and that there was an organised grouping of employees carrying out the relevant activities.

The Employment Tribunal held that the two individual claimants, who were directors of the transferor, were not assigned to that grouping. Their roles substantially involved strategic, organisational, regulatory and tendering work. The Tribunal could not determine the extent of any frontline work. It also found that Mr McAleavy’s appointment was temporary.

The claimants and transferor appealed solely on perversity grounds. The central issue was whether the directors had been assigned to the organised grouping immediately before the transfer.

1. Appeal dismissed. The Employment Judge was plainly entitled on the evidence and findings to conclude that neither claimant was assigned to the relevant organised grouping for the purposes of Transfer of Undertakings (Protection of Employment) Regulations 2006.

2. Assignment under regulation 4 requires an individual inquiry. The existence of an organised grouping under regulation 3(3)(a)(i), and the fact that the transferor had only one client, do not establish that every employee was assigned to it. The employee must have been assigned to the grouping organised principally to carry out the particular activities for which the client contracted.

3. The Employment Judge was entitled to distinguish work constituting the client activities from work concerned with maintaining the corporate entity. The directors’ strategic planning, tendering, Care Commission compliance, training and head-office functions did not become contracted client activities simply because they enabled service provision. A link, even a causal one, between an employee’s work and the client service is insufficient.

4. The evidence did not permit a conclusion about the nature or extent of either claimant’s frontline service work. The claimants bore the burden of establishing assignment and had not supplied satisfactory evidence to do so. Mr McAleavy’s contemporaneous work for another organisation made assignment to the Council contract particularly difficult to establish.

5. Independently, any assignment of Mr McAleavy was temporary. Under regulation 2, a temporary assignment is not an assignment for TUPE purposes. The challenge was an attempt to reargue factual matters and did not meet the demanding perversity threshold.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s judgment, registered on 15 June 2011, that the individual claimants’ contracts did not transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006.
• Employment Tribunal, Edinburgh: Held that the individual claimants were not assigned to the organised grouping of employees subject to the service provision change.