EAT Transfer of Undertakings: Service Provision Change – The First Respondent had an organised grouping of employees which worked on a contract for the London Borough of Enfield. The Claimant was one of those employees. On 19 June 2013, the London Borough of Enfield issued an instruction to the First Respondent that the Claimant and others should no longer work on the contract. The First Respondent did not accept that instruction: it wrote to the London Borough of Enfield challenging the instruction. The organised grouping transferred to the Second Respondent on 1 July 2013. The question arose whether the Claimant was assigned to that organised grouping immediately before the transfer. The Employment Judge held that by virtue of the instruction of the London Borough of Enfield, the Claimant was no longer assigned to the organised grouping.
Held: Appeal allowed. It was for the employer, not the London Borough of Enfield, to assign its employees. The Employment Judge had erred in law by failing to consider whether the First Respondent had acted on the instruction. On the facts it was plain that the First Respondent continued to assign the Claimant to the organised grouping of workers immediately before the transfer. Fairhurst Ward Abbotts Ltd v Botes Building [2003] UKEAT/1007/00/DA, [2004] IRLR 304 and Robert Sage Limited T/A Prestige Nursing Care Limited v O’Connell [2014] IRLR 428 considered.
Richardson HHJ
[2015] UKEAT 0432 – 14 – 2204
Bailii
England and Wales
Employment
Updated: 01 January 2022; Ref: scu.549014
