By Rachel Ellis, Partner & Regional Employment Rights Manager &
Matthew Rowlinson, Employment Rights Lawyer
Background
Mrs Oliveira worked for G-Staff Ltd, a temporary work agency (TWA), and was supplied to Butcher’s Pet Care Ltd as an Alutray Operative. Later, she was employed by another TWA, Mach Recruitment Ltd, which took over provision of the same services to Butcher’s.
She claimed that her employment had transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) when Mach replaced G-Staff. For TUPE to apply in a service provision change, there must be an “organised grouping of employees” whose principal purpose is carrying out the relevant work for the client immediately before the transfer.
Mach argued that no such grouping existed and that any continuity in staffing was coincidental or due to shifting operational needs rather than deliberate planning.
Key Issues
- Organised Grouping Under TUPE
The core issue was whether there was a deliberately organised group of employees at G-Staff assigned to work for Butcher’s before Mach took over. TUPE case law requires more than a mere coincidence of work patterns—it demands intentional organisation by the employer.
- Lack of Evidence from Mach
Mach failed to provide evidence to challenge the claim that G-Staff had organised staff specifically for Butcher’s. The employment judge accepted Mrs Oliveira’s testimony that she worked consistently with the same team in the same role. Mach did not offer alternative evidence to show a wider or differently structured workforce.
- Flexibility of Agency Work Not a Barrier
The Employment Appeal Tribunal (EAT) recognised the flexible nature of agency work but held that the existence of a relatively stable team working for one client could still meet the threshold for an “organised grouping”.
Outcome
The EAT dismissed Mach’s appeal, finding that:
- The employment judge had correctly applied legal principles from TUPE case law.
- Mrs Oliveira and her colleagues formed an organised grouping assigned to Butcher’s, based on consistent placement and shared duties.
- There was no need for “conscious segregation” of employees if the evidence showed deliberate allocation in practice.
- While another tribunal might have reached a different conclusion, the decision was not perverse.
Why This Matters
This ruling confirms that tribunals can infer the existence of an organised grouping for TUPE purposes even in flexible or informal working arrangements—especially where agency workers are consistently assigned to the same client and role.
For union reps supporting members in TUPE disputes, the case underlines the importance of gathering clear evidence of how workers were deployed in practice, particularly where employers claim that team arrangements were ad hoc. Where employers fail to produce counter-evidence, tribunals may still find TUPE applies.
The case also highlights that appeals on the grounds of perversity are a high hurdle to overcome as they would need to prove that no reasonable employment tribunal could have reached the conclusion reached by the employment tribunal on the basis of the findings of fact it made.
