Can the client in a Reg 3(1)(b) Service Provision Change determine who is assigned to the organised grouping? In Robert Sage t/a Prestige Nursing v O’Connell the EAT had held that the issue is to be determined by asking the question: Where would the employee be required to work immediately before the transfer? This case essentially asks the same question but comes to a different conclusion on the facts.
S was a contractor who employed the claimant providing cares services. E was the client. The contract came to an end on 30 June 2013 and W took it over from 1 July 2103. The claimant was told that her employment would transfer from S to W. However, from February 2013, the claimant had, with two others, been suspended from her employment with S for disciplinary reasons. The contract between S and E provided that E had the right to reject staff whom it considered unsuitable for the duties proposed. E was concerned about the continued employment of the suspended employees, including the claimant, on the contract and informed S on the 19 June that it wished to have them removed from it. S objected to this and told E that it was disputing the lawfulness of the demand. On the 27 June, 3 days before the transfer, the Claimant was disciplined and given a final written warning. Initially the claimant was informed by both S and W that she had transferred. However, E maintained its stance and by late July both S and W accepted that she had not transferred and she was made redundant by S in September 2013. The Claimant claimed that she was assigned to the organised grouping of employees that had transferred from S to W.
The ET judgment
The ET held that because E had requested the claimant’s removal from the contract prior to the transfer, this had the effect that as at the date of the transfer she was not assigned to the organised grouping.
The EAT Judgment
The claimant appealed on the basis that the EJ was wrong to treat the decision of E that it did not want to have the claimant on the contract as conclusive. Essentially, she advanced the case that as at the date of the transfer the matter was still in dispute as S had not accepted that E’s request was well founded (although it subsequently did so).
The EAT held, allowing the appeal, that the ET had erred in treating E’s decision as determinative. As at the date of the transfer the Claimant was no longer suspended and S had not accepted E’s demand to remove her from the contract (as happened in Robert Sage). The EAT observed that in a case where the client demanded the removal of the employee from the contract the contractor may accept this, in which case the employee would not be assigned. It may, albeit at risk of being in breach of contract with the client, insist on the employee working on the contract. It may protest and excuse the employee’s attendance on the contract whilst doing so. In the latter two scenarios the employee would remain assigned.
In reaching its decision the EAT distinguished Robert Sage for three reasons: (i) in this case S did not accept the client’s demand for the employee to be removed from the contract. (ii) The claimant was a manager and not the person providing care to a specific patient. (iii) Here the disciplinary proceedings had concluded whereas in Robert Sage they had not.