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 , 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