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Service provision changes: directors not part of "organised grouping of employees"
The EAT has upheld a tribunal's decision that the directors of a housing charity providing services to a local authority did not transfer under TUPE when the service was taken "in-house". Although there was clearly a service provision change, the directors carried out strategic roles in the transferor organisation and were concerned with the running and maintenance of the entity, rather than with the direct provision of the services to the local authority. Consequently, they were not part of the organised grouping of employees for the purposes of regulation 3(3)(a)(i) of TUPE.
In the judgment, the EAT considered various examples of where the line is to be drawn between those employees who are essentially dedicated to the provision of services to a client, and those who are part of the transferor's infrastructure, who are not sufficiently connected with the client to form part of the organised grouping.
(Edinburgh Home-Link Partnership and others v The City Of Edinburgh Council and others UKEATS/0061/11.)
Mutual trust and confidence: curing a breach or preventing a breach?
The EAT has upheld a tribunal's decision that there was no breach of trust and confidence when an employer vindicated an employee whose manager had made spurious allegations that were likely to damage trust and confidence.
The EAT distinguished Buckland v Bournemouth University, in which the EAT had held that, once a repudiatory breach had happened, it could not be cured and remained open to the wronged employee to resign and claim constructive dismissal. This case was different, because the manager's conduct on its own was not enough to seriously damage trust and confidence, and the employer's subsequent actions prevented the situation escalating into such a breach. (Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11.)
Mutuality of obligation in casual worker arrangement despite parties' ability to terminate at will
The EAT has found that, where a market researcher worked on an ad hoc basis on a succession of individual assignments, there was sufficient mutuality of obligation to establish an employment relationship. The individual was expressly told that he was a worker rather than an employee, but was given a handbook which said that, once he had accepted an assignment, it would be considered a "verbal contract" which he was expected to complete within a given deadline.
The fact that there was no sanction for not completing the work did not mean that there was no contract in existence while the assignment was continuing. In effect, the arrangement was a contract terminable at will. The case was remitted back to the employment tribunal to determine whether the individual was, in fact, an employee, and whether he had sufficient continuity of service to bring an unfair dismissal claim. (Drake v Ipsos Mori UK Ltd  UKEAT/0604/11.)
Loss of death-in-service benefit recoverable by deceased former employee's estate
The EAT has held that the dependents of an employee who died a few days after being dismissed could claim the loss of the death-in-service benefit which would have been provided had he died during his employment. Where the employee died shortly after dismissal, the loss amounted to the full sum which would have been payable on death, and not just the premium required to ensure continuous life assurance cover at the appropriate level. The EAT also considered the statutory provisions governing claims brought on behalf of deceased employees.
It confirmed that the correct procedure is to make an application to the employment tribunal to be appointed as an appropriate representative prior to issuing the claim. If this causes the claim to be issued out of time, the employment tribunal must take that into account when applying the "reasonably practicable" test in relation to time limits. (Fox v British Airways plc, UKEAT/0033/12, 30 July 2012.)