The Transfer of Undertakings (Protection of Employment) Regulations 2006 safeguard the rights of employees “assigned to the organised grouping of resources or employees that is subject to the relevant transfer” with the result that their employment is not terminated on the transfer but transfers to the transferee organisation.
Not very helpfully, “assigned” is defined as “assigned other than on a temporary basis”, so case law has had to tell us what the word really means. Firstly, it does include employees who are on sick leave, maternity leave or some other leave at the time of the transfer if they would have been part of the organised grouping had they been at work. On that basis, it wouldn’t include someone who had been suspended from work following an instruction that they would not be allowed to continue working as part of the team servicing a particular client.
But what if an employee carries out some of their duties for the part of the business which is transferring and other duties for a part which is not transferring. Can you just look at the percentage of time spent carrying out each part of their job? The answer is a resounding “No”.
Let’s look at someone whose role is to support a manager. If that manager isn’t going to transfer (for whatever reason), then the support role won’t transfer either – even if they happen to spend the majority of their time involved in the part of the business which is transferring.
However, if that manager had been required to support two parts of a business and, as a result, she was going to transfer with the business for which she spent 60% of her time, then her assistant (if dedicated to her) would transfer with her even if they spent less than 50% of their time on the part of the business transferring. As you can see, time spent is just one of the factors which should be taken into account.
But what about someone who spends all their time in the transferring business or on a contract which has been reassigned – surely they transfer? Once again, the answer is “No”.
In the recent case of Costain Ltd v Armitage, the EAT confirmed previous case law that there must be a “deliberate putting together of a group of employees for the purpose of the relevant client work … it is not a matter of happenstance”. In other words, if you just happen to be spending all your time working for one part of the business without any conscious management decision that you be dedicated to it, you haven’t been assigned at all.