Understanding the Deliberate Grouping Requirement in TUPE Transfers
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Feb 21, 2024
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Understanding the Deliberate Grouping Requirement in TUPE Transfers
In the complex world of employment law, the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) plays a crucial role in safeguarding the rights of employees during business transfers. One of the key aspects of TUPE is the requirement for a "deliberate" grouping of employees to be transferred. This article aims to shed light on this important requirement and its implications.
The recent tribunal case of "Employees must be part of a 'deliberate' grouping to transfer under TUPE, tribunal says" highlighted the significance of a deliberate grouping. The ruling emphasized that the grouping must be intentionally organized, rather than occurring by happenstance. Merely spending the majority of their time working for a single client does not automatically denote a deliberate grouping. Instead, the principle purpose of the group should be to provide services, not solely to a specific client.
To further understand the concept of a deliberate grouping, it is essential to examine relevant cases and guidance. In the case of Botzen v Rolterdamsdhe and Duncan Webb Offset (Maidstone) Limited v. Cooper, the courts held that employees who have been "assigned" to the undertaking should be transferred. This indicates that there must be a clear connection between the employees and the activities that are being transferred.
The Department for Business Innovation and Skills offers guidance on the matter, stating that employees should be "essentially dedicated" to carrying out the transferring activities for an organized grouping to be recognized. This means that the employees must be organized according to the requirements of a specific client and be identifiable as part of that client's team. Mere allocation of a significant portion of their work to a particular client is insufficient to establish a deliberate grouping.
The Eddie Stobart Ltd v Moreman and Others case further clarified this requirement. The Employment Appeal Tribunal (EAT) ruled that it is not enough for employees to carry out the majority of their work for a client; they must also be organized in accordance with the client's needs. This emphasizes the importance of intentional organization rather than coincidental allocation of tasks.
In light of the above, it is evident that a deliberate grouping is a crucial factor in determining whether employees should be transferred under TUPE. To ensure compliance with this requirement, employers should consider the following actionable advice:
- 1. Clearly define and document the purpose of employee groupings: Employers should establish and communicate the purpose of each employee grouping, ensuring that it aligns with the activities being transferred. This clarity will help demonstrate the deliberate nature of the grouping.
- 2. Implement effective tracking and record-keeping systems: It is essential to maintain accurate records of employees' assignments and activities. This will enable employers to demonstrate that employees are organized according to specific client requirements and are identifiable as part of a client's team.
- 3. Regularly review and assess employee groupings: Employers should periodically evaluate their employee groupings to ensure they continue to meet the requirements of a deliberate grouping. This proactive approach will help identify any necessary adjustments and mitigate potential non-compliance risks.
In conclusion, understanding the concept of a deliberate grouping is vital for employers navigating TUPE transfers. The recent tribunal case and relevant guidance shed light on the importance of intentional organization and client-specific requirements. By following the actionable advice provided, employers can ensure compliance and mitigate risks associated with TUPE transfers.
(Note: The content above is a combination of the provided information and does not reference any specific sources.)
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