REWARD INSIGHT
TUPE, disability, racial discrimination
Nicola Mullineux, senior employment specialist for Peninsula , reviews decisions in three cases
Amaryllis Ltd v McLeod & Others The Employment Appeal Tribunal (EAT) has overturned a finding that the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied when a service contract was lost. The current facts of the situation must be looked at, it said, and not the historical ones. The claimants in this case worked for a company called Millbrook. They had a contract with the Ministry of Defence (MOD) to carry out renovation of wood and metal furniture for over fifty years. However, between 2003 and 2008, another company called Amaryllis carried out work for the MOD, some of which was sub-contracted to Millbrook. In 2008, the MOD officially split the work into two contracts: Millbrook was awarded the contract for renovation of furniture, while Amaryllis was awarded the contract for new furniture supply. Millbrook had carried out the MOD’s
renovations work as well as other work. It was estimated that Millbrook’s workers spent 70% on MOD renovation. In 2014, all work was subject to re- tender and Millbrook lost the renovation contract to Amaryllis. The Employment Tribunal (ET) had to decide whether Millbrook’s employees should transfer to Amaryllis. To do this, it needed to analyse whether, at the relevant time, there was a specifically organised grouping of employees assigned to the MOD contract. The ET held that the department at Millbrook had originally been created and dedicated to carry out work under the MOD contract and it had done for more than fifty years. It held that at the relevant time there had been an organised grouping of employees whose main purpose was to carry out activities for the MOD and that the claimants concerned in this case were assigned to that grouping. Although Millbrook had taken on other work, the department had originally
been set up to deal with MOD work and therefore there was an organised grouping of employees.
The EAT held that an organised grouping of employees must be
purposefully organised by the employer with the principal reason to carry out the work in question and that the relevant time was immediately before the transfer; the historical situation was not relevant. The ET had relied on facts relevant to the carrying out of activities in general rather than for a particular client. It also decided that the ET had been wrong to consider that the sole client that the work had been carried out for throughout the whole period was the MOD, when in fact, the period of subcontracting during 2003 and 2008 negated this. During those years, the client for whom the work was carried out was Amaryllis, not the MOD. The EAT overturned the original decision and held that the Millbrook employees did not transfer to Amaryllis. Carreras v United First Partners Research The EAT has decided the requirement for an employee to work late was enough to entitle him to claim he was being
...the relevant time was immediately before the transfer; the historical situation was not relevant
| Professional in Payroll, Pensions and Reward | September 2016 | Issue 23 44
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