ABG Employment Newsletter – October 2015

TUPE:  Temporary lay-off is no bar to ‘organised grouping of employees’

For a TUPE-transfer by way of a service provision change (SPC) to occur, there must, immediately before the change in service provider, be an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of activities on behalf of the client – Reg 3(3)(a)(i) TUPE.  In Inex Home Improvements Ltd v Hodgkins and ors, the EAT has explained that the temporary cessation of work does not preclude the existence of such an organised grouping.

H was one of a group of employees of IHI Ltd who were carrying out a series of works orders subcontracted from TV Ltd. During December 2012, the employees completed all activities associated with the most recent order, and it was anticipated that the next works order would not be released until January 2013. The employees were therefore temporarily laid off in accordance with the terms of their contracts. Following this, there was a falling out between IHI Ltd and TV Ltd, and future works orders were instead given to L Ltd. H and his fellow employees brought claims against IHI Ltd, TV Ltd and L Ltd, and the tribunal held a preliminary hearing to determine whether there had been a TUPE transfer by way of an SPC. The employment judge found that there had been no TUPE transfer.

In the EAT HHJ Serota QC observed that there is nothing in Reg 3 to indicate whether the organised grouping of employees having as its principal purpose the carrying out of the relevant activities must be actually engaged in those activities immediately before the SPC.  Where there has been such a temporary cessation in work, it is necessary to consider whether the organised grouping has continued to exist and the case was remitted to the Employment Tribunal for consideration of appropriate evidence.

TUPE:  Employee on long-term sick leave not ‘assigned’ for TUPE purposes

The Inex Home Improvements case above should be contrasted to the BT Managed Services case we reported in our September Newsletter, where the same Judge in the EAT held that an employee who had been off work for six years and had no prospect of returning to work was not “assigned” to an organised grouping for TUPE purposes.  The employee’s only connection with the grouping was administrative: he remained “on the books” so that he could continue to receive permanent health insurance.

These contrasting cases emphasise the complexity of this area of the law and the need to take appropriate advice when faced with a TUPE scenario.

Peripatetic workers’ travel time to first and last customers of the day is “working time”

The ECJ has followed the Advocate General’s opinion by finding that the time spent by workers, who do not have a fixed or habitual place of work, on travelling each day between their homes and the premises of the first and last customers designated by their employer is “working time” for the purposes of the Working Time Directive.

While the decision is not surprising in the sense that it follows the Advocate General’s opinion, it will have a significant impact on the current trend for companies wanting to move from office-based businesses to more mobile ones.

October 2015 employment law changes

On 1 October 2015 several key employment law changes were introduced by the Deregulation Act 2015, including removing the power for employment tribunals to make wider recommendations in discrimination cases, and extending the right for Sikhs to wear a turban instead of a safety helmet in almost all workplaces. The new national minimum wage rates also came into force on that date.

The comments in this note are of a general nature only.  Full advice should be sought on any specific problems or issues.

Christopher Gigg  cgigg@abg-law.com  +44 (0)115 934 3310

Kathryn Meir kmeir@abg-law.com +44 (0)115 934 3308