In service provision change cases once an organised grouping of employees is established, the next issue is to determine whether the claimant employee is assigned to that organised grouping (a pre requisite to liabilities transferring under Reg 4). This case is concerned with assignment. The approach to assignment is the same whether under a Reg 3(1)(a) transfer or a Reg 3(1)(b) transfer.
The ET decision
The Claimants, along with several other employees, worked for RG Ltd. RG Ltd carried out repair and maintenance work on LBH’s housing stock. In November 2012 LBH told RG Ltd that they were no longer going to receive any work and also that TUPE did not apply. All of the employees of RG Ltd issued claims in the ET and all except the Claimants’ claims were settled.
The EJ at a pre-hearing review (“PHR”) held that there was an organised grouping subject to a transfer by reason of an SPC. On the main hearing a a different Judge held that, in deciding that an organised grouping existed at the PHR, the EJ had also held by inevitable implication that the the Claimants were assigned to it. The issue was res judicata. In case he was wrong about that, he held that they were assigned anyway because the Claimants were part of a group which worked almost exclusively for LBH. Their other tasks were negligible.
The EAT allowed LBH’s appeal.
First, the EJ at the PHR had not decided the assignment question. The issues of organised grouping and assignment were separate: Edinburgh Home-Link Partnership and ors v The City of Edinburgh Council.
Secondly, insufficient findings of fact had been made to determine whether the Claimants were “assigned” to an organised grouping. In particular it had made no findings of fact about the contractual obligations of the Claimants or the organisational structure of RG Ltd. The EAT referred to the decisive criterion under Botzen v Rotterdamsche Doogdok Maatschappij BV  ECR 519 of whether the grouping “formed the organisational framework within which their employment took effect”. The EAT observed that one relevant factor was “what duties the Claimants could be called upon to perform under their contracts as well as those which they were actually performing at a particular moment in time”. The Council’s case was that the Claimants were, at the time of the transfer, preoccupied with the Council’s contracts, but that was because RG Ltd were commercially reliant on those contracts and not because performing those contracts defined the organisational framework of their employment.