The Law
Under Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), a service provision change will occur when, immediately prior to the change, there is an organised grouping of employees whose principal purpose is to carry out activities on behalf of the client.
The Facts
Mrs Oliveira was originally engaged by G-Staff Ltd as an agency worker. However, because G-Staff chose to apply the Swedish derogation, Mrs Oliveira was employed under a contract of employment, meaning she was protected under TUPE Regulations.
G-Staff Ltd supplied agency workers to Butcher’s Pet Care Ltd (Butcher’s). Mrs Oliveira worked at Butcher’s as an Alutray Operative.
Mrs Oliveira was then engaged with Mach Recruitment Limited (Mach) on 18 July 2018. Following this, Mach began supplying agency workers to Butcher’s under a Service Level Agreement.
The Employment Tribunal determined that the change constituted a service provision change under TUPE. Mach Recruitment Limited appealed this decision.
The Appeal
Mach’s representative argued that an organised grouping of employees must result from the transferor’s deliberate planning or intention. They argued that no such planning occurred — a group of employees happened to be working predominantly on tasks for a particular client due to circumstances rather than intentional structuring.
Mrs Oliveira responded by asserting that the Judge had properly evaluated the evidence, which showed she consistently worked with the same group of employees.
The Decision
The EAT dismissed the appeal. The EAT concluded that the Employment Judge was entitled to find that there was an organised grouping of employees within G-Staff whose principal purpose was to carry out activities for Butcher’s.
The EAT did not accept Mach’s argument that the Employment Judge merely confined his judgement to the activities that the Claimant and her team were doing. The EAT determined that consistent working patterns are typical of agency work to which service provision change applies.
Mach’s submissions were based on the assumption that an organised grouping requires a deliberate and conscious decision to segregate employees. However, the EAT disagreed, finding it sufficient that the Claimant consistently worked with the same group of employees.
First published on 26/08/2025 on FCSA’s main website https://fcsa.org.uk
