A recent Employment Appeal Tribunal (EAT) decision in the case of Mach Recruitment Ltd v Mrs Maria Oliveira shows how employment tribunals may apply the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to agency workers.
Background
Mrs Oliveira was an agency worker employed by G-Staff Ltd (G-Staff) under a contract of employment. She was supplied by G-Staff to work as an Operative for Butcher’s Pet Care Ltd (Butcher’s).
On 18 July 2018, Mrs Oliveira became employed by a new temporary work agency, Mach Recruitment Ltd (Mach). Later in 2018, Mach won the contract from G-Staff and began supplying temporary workers to Butcher’s. The question arose as to whether the change in service provider from G-Staff to Mach amounted to a ‘service provision change’ for the purposes of TUPE and therefore whether Mrs Oliveria’s employment had transferred to Mach under TUPE meaning that she qualified for certain protections.
TUPE is a key piece of UK employment law designed to protect employees when the business or service provider they work for is transferred to a new employer. TUPE requires that, for a service provision change to apply, there must be an ‘organised group of employees’ whose main purpose is to carry out work for a specific client. This grouping must be deliberately organised by the employer – not just a random collection of employees.
Mrs Oliveria had already won her first instance Employment Tribunal case on this point, where the judge decided that G-Staff had an “organised grouping of employees” whose main job was to carry out work for Butcher’s. When Mach took over, this was considered a service provision change under TUPE. Mach appealed to the EAT.
The Decision
In the appeal, Mach argued that the grouping of agency workers was not deliberately organised. They claimed that the employees ended up working for Butcher’s due to shift patterns and practical arrangements, not because of any formal planning.
However, the EAT disagreed. It was found that Mrs Oliveira consistently worked with the same group of people, and this was enough to show that there was a specific group that was organised to meet Butcher’s business needs. The EAT noted that this was more than a coincidence and was typical of agency work, where teams may be flexible but still organised around client requirements.
It is, however, important to note that this was a case where there was very little evidence available for the tribunal or the EAT to consider. There was no real evidence of whether or how G-Staff had decided which agency workers would be supplied to Butcher’s, so Mrs Oliveira’s evidence that she consistently worked with the same group of agency workers was one of only a few pieces of evidence which the judge had to go off. There is quite a substantial body of previous case law which states that for an organised grouping to exist, the employer has to have deliberately organised its staff for the purpose of carrying out the activities required by a particular client. Ordinarily, you would expect that the mere fact that Mrs Oliveira happened to work with a similar group of employees on each shift would be insufficient on its own, but the lack of any other substantive evidence seems to have swayed the judge in this case.
Takeaways
There is often a legal argument as to whether agency workers are even in scope of TUPE at all, or whether it is only the agency’s permanent staff (such as account managers) who are actually providing the services which are transferring. That point doesn’t seem to have been raised at all in this case and the parties seem to have accepted that Mrs Oliveria was potentially in scope of TUPE provided she was assigned to the organised grouping.
This case highlights the importance of how agency workers are grouped and assigned to clients. Even if there’s no formal decision to create a team, consistent working patterns and client-focused assignments can potentially be enough to trigger TUPE protections. That said, if there had been more physical evidence available of the operational arrangements at Butcher’s in this case, it is possible that the judge might have reached a different conclusion.
Overall, this case serves as an important reference point for interpreting TUPE in service provision contexts, specifically those involving agency workers, and underscores the need for clarity and properly documented processes when contracts change hands.
