Tribunal Report: Watch out for Tupe - it does not apply to all employees

Tupe is a notoriously complex area and often leads to claims, which can be costly, says Victoria Willson

Victoria Willson
Victoria Willson

The Employment Appeal Tribunal's recent judgment in Edinburgh Home-Link Partnership, Lilias Morrison and Andy McAleavy v The City of Edinburgh Council and Others reminds charities of how to correctly identify "assigned" employees in cases of service provision change to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (Tupe) apply.

The Story

Home-Link is a charity providing outreach and housing-related services to vulnerable people in Edinburgh. It had a contract with the council (which was its only client) to provide these services. In 2009, the council decided to take those services in-house, which was considered a service provision change under Tupe.

Accordingly, Home-Link employees who were "assigned" to the "organised grouping of employees" (ie those providing the relevant services to the council) transferred to the council.

Morrison and McAleavy, both senior directors of Home-Link, had similar, largely strategic roles. McAleavy was also the director of another registered charity, Homeless Outreach Project.

It was considered that Morrison and McAleavy were not assigned and therefore their employment did not transfer. They and Home-Link disputed this and brought Employment Tribunal claims.

The tribunal found that even though the council was Home-Link's only client, Morrison and McAleavy's roles did not relate to service delivery, but rather to running the charity and dealing with tendering work and the Care Commission, with limited front-line duties. Accordingly, they were not assigned. Furthermore, in McAleavy's case the tribunal could not separate his roles for the two charities and found that his position with Home-Link was temporary, precluding him from being assigned.

The appeal was on the basis that the tribunal had erred in focusing on the front-line duties, that Morrison and McAleavy were managerially responsible for the employees delivering the front-line services and that the tribunal had made other errors.

The appeal tribunal found that simply being able to show some link to front-line service delivery was insufficient. The question was whether an employee, prior to the Tupe transfer, was sufficiently involved in the delivery of front-line services to be regarded as assigned to the organised grouping. Having concluded that Morrison and McAleavy did not meet this test, it dismissed the appeal.

Lessons for charities

Tupe is a notoriously complex area and often leads to claims, which can be costly.

Charities involved in a Tupe transfer should seek legal advice at an early stage. It should not be assumed that Tupe applies to all employees. The purpose of each employee's role should be examined to determine whether they are assigned and should therefore transfer. It is the reality of the work, rather than a job description, that is relevant.

When an employee is not assigned it might be that their role is redundant, in which case the transferor charity must conduct a fair redundancy consultation process.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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