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A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) takes place when, immediately before the change, there is an 'organised grouping' of employees that has as its principal purpose the carrying out of the relevant activities on behalf of the client – TUPE Regulation 3(3)(a)(i).
In Jakowlew v Saga Care and Another, the question arose as to whether an employee was still assigned to an organised grouping where the client had instructed her employer to remove her from working on the contract.
Angelika Jakowlew was employed as a care manager in Saga's office in Enfield working principally on a contract for the London Borough of Enfield (Enfield). When the contract ended on 30 June 2013, Saga did not wish to renew it and it was taken over by Westminster Homecare Limited (Westminster). Following a dispute in February 2013 between Mrs Jakowlew, a colleague and their line manager, all three had been suspended on full pay and remained so at the time of the TUPE transfer. Saga's contract with Enfield gave the client the right to instruct the contractor to remove an employee. On 14 June, Enfield wrote to Saga to find out the outcome of the disciplinary proceedings. When Saga failed to respond, it wrote again on 19 June requesting that the three employees be removed from the contract. However, Saga disputed the legality of the notice.
Following a disciplinary meeting, Mrs Jakowlew was given a written warning for her conduct and told that her employment would transfer to Westminster from 1 July 2013. When Westminster learned of Enfield's earlier instruction, however, she was told that she would not be working on the contract for the council and was given a list of vacancies, none of which she considered suitable. Further meetings took place between Saga and Westminster at which it was agreed that there had been no TUPE transfer regarding Mrs Jakowlew and she therefore remained an employee of Saga. She was eventually dismissed on grounds of redundancy.
Mrs Jakowlew brought a claim against both Saga and Westminster for unfair dismissal.
The Employment Tribunal (ET) found that her employment did not transfer as, by virtue of Enfield's instruction, she was no longer assigned to the organised grouping of employees when the transfer took place. She therefore remained, at all material times, an employee of Saga.
This decision was challenged at the Employment Appeal Tribunal (EAT). Mrs Jakowlew argued that Enfield was not her employer and so could not take away her rights under TUPE. Saga was her employer and it had treated her as assigned to the organised group of employees until after the transfer date. Her suspension made no difference in this regard.
The EAT upheld the appeal. The TUPE Regulations contemplate assignment by the transferor employer, not by 'the unilateral act of a third party without the employer's intervention or authority'. The ET had erred in law by failing to consider whether Saga had acted on Enfield's instruction to remove Mrs Jakowlew from the contract. It had not: it had protested against the instruction and sought to change Enfield's mind.