TUPE and assignment by election

Book your free initial call

    We endeavour to make an initial response to all enquiries within 24 hours but please be aware that on some occasions due to prior commitments or volume of calls we will not be able to respond in that time frame. We also operate a 48 hour return policy. This return policy means that if we have not responded with 48 hours of your initial enquiry we are unable to do so due to current workloads and we will destroy your data accordingly. This policy ensures you are not left waiting and have the certainty that your data is not compromised. In most instances however we are able to make contact within a 24 hour time frame. Please note our free initial advice service is available to clients at our total discretion and if your case is of a complex nature we may not be able to offer you a free consultation. However in these instances we will advise you what the charge would be for an initial fixed fee consultation.
  • (view our privacy statement)
  • This field is for validation purposes and should be left unchanged.

In a TUPE scenario, the end user cannot decide who is assigned to an organised grouping of employees for the purpose of the transfer according to the EAT as this is a matter for the employer.

In the case of Jakowlew v Saga Care [2015], the Claimant worked for the end user a London Borough through her employer, shortly before the contract ended the Claimant fell out with her line manager and the end user asked the employer to remove her from the contract which was expressly provided in the terms of agreement between the employer and end user. The employer did not take action so when the contract transferred to a third party the Claimant’s employment transferred as she was still assigned to the undertaking.

The issue was whether the end user/client could elect who did and didn’t transfer but the EAT held that it was the employer who controlled the assignment and who was assigned to the undertaking at the relevant time.

1st August 2015