The Employment Appeal Tribunal has decided that employees can still be ‘assigned’ and therefore protected by legislation on the transfer of undertakings when they are on a period of lay off.

In February 2010, Thomas Vale entered into a contract with Sandwell to carry out various refurbishments on Sandwell’s properties. The workers, including the Claimants, who were already working on these properties under Sandwell contracts were transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to Thomas Vale. Thomas Vale contracted out their duties under the Sandwell contract to Inex Home Investments Ltd, which resulted in the workers transferring employers to Inex in May 2011 by TUPE, again. The current work project, number 8, which the Claimants were completing had finished before Thomas Vale had announced the next one. All the employees who worked for Inex Home Improvements on the Sandwell properties were put on a lay off period, as the work had ceased. On 7th November 2012, Inex wrote to the workers notifying them that the lay off was temporary and that work would be available again on 7th January 2013. However, when the next project arrived in January 2013, Thomas Vale contracted it out a new company called Localrun and not to Inex. The employees who worked for Inex claimed that their employment had transferred to Localrun as they had previously been doing the work under the Sandwell contract and had changed employers a number of times in order to carry on doing the work on the Sandwell properties.

The Employment Appeal Tribunal held that in order for employees to be transferred to a new employer by virtue of TUPE, there is no requirement for the employees to be involved in carrying out work immediately before the date of transfer. It was necessary for the employees to be assigned to the grouping, but ‘assigned’ does not necessarily mean that they were working. The EAT Judge commented that, although every case would depend on the facts, the purpose of the TUPE Regulations is to protect continuity of employment and this purpose would be defeated if TUPE does not apply when employees are laid off.

Inex Home Improvements Ltd v Hodgkins and others