Jakowlew v Nestor Primecare Services Ltd (trading as Saga Care)

For the purposes of a service provision change, assignment to an organised grouping of employees is determined by the employer, or by someone authorised by the employer. A client’s unilateral instruction to remove an employee does not, without more, end that assignment. The question is whether, immediately before the transfer, the employer would have required the employee to work in the grouping if the employee had not been excused from attendance. Suspension on full pay pending disciplinary proceedings is ordinarily an excusal from attendance and does not itself remove the employee from the grouping. The employer’s response to the client’s instruction is therefore decisive.

The claimant was employed by Saga as a care manager and worked principally on a contract with Enfield. Westminster took over that contract on 1 July 2013. Enfield had instructed Saga to remove the claimant from the contract under a contractual provision allowing it to reject unsuitable staff. Saga disputed the instruction and did not act on it before the transfer.

The Employment Tribunal held that the claimant had ceased to be assigned to the organised grouping because of Enfield’s instruction, and therefore had not transferred under the Transfer of Undertakings (Protection from Employment) Regulations 2006. The appeal concerned whether the client’s instruction alone ended the claimant’s assignment.

1. Appeal allowed. The Employment Tribunal had erred in law by treating Enfield’s instruction as determinative and by failing to examine what Saga did in response to it.

2. Regulation 4 uses assignment in the context of employment by the transferor. The natural reading is that assignment must be by, or with the authority of, the employer. A third party cannot unilaterally assign or unassign an employee for these purposes.

3. The relevant inquiry is whether, immediately before the transfer, the employee would have been required by the employer to work in the organised grouping if the employee had not been excused from attendance. The approach in Fairhurst Ward Abbotts Ltd v Botes Building [2003] UKEAT/1007/00/DA and its Court of Appeal decision [2004] IRLR 304 was considered and adapted to the service provision change provisions.

4. Suspension on full pay pending disciplinary proceedings is an excusal from attendance, comparable to sickness, holiday, study leave or maternity leave. It does not itself terminate assignment where the expectation remains that the employee will return to the same group.

5. Robert Sage Ltd v O’Connell [2014] IRLR 428 was distinguishable because the employer there accepted the client’s request and acted accordingly. Saga instead protested the instruction and continued to treat the claimant as assigned to the grouping. On the Tribunal’s findings, only one outcome was possible: the claimant remained assigned immediately before the transfer.

6. The Employment Appeal Tribunal could substitute its decision because, applying Jafri v Lincoln College [2014] IRLR 544 and Burrell v Micheldever Tyre Services Ltd [2014] IRLR 630, the correct application of the law to the Tribunal’s findings produced a single result. A declaration was made accordingly.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s judgment dated 3 April 2014 and declared that the claimant remained assigned to the organised grouping transferring from Saga to Westminster.