TUPE Ruling: Agency Workers Can Form 'Organised Grouping' for Service Provision Change
The EAT upheld a tribunal's decision that agency workers assigned to a specific client can constitute an 'organised grouping' under TUPE, triggering transfer rights.
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Agency Workers and TUPE: 'Organised Grouping' Defined
The Employment Appeal Tribunal (EAT) has ruled in the case of Mach Recruitment Ltd v Oliveira [2025] EAT 107 that a group of agency workers consistently assigned to a particular client can be considered an 'organised grouping of employees' for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). This decision clarifies the application of TUPE in service provision changes within the agency worker context.
Background of the Case
Mrs. Oliveira was initially employed by G-Staff Ltd, an agency supplying workers to Butcher's Pet Care Limited (Butcher's). She worked as an Alutray Operative at Butcher's. Later, Mach Recruitment Ltd took over the service provision to Butcher’s from G-Staff. The central question was whether the transfer from G-Staff to Mach Recruitment constituted a service provision change under TUPE, specifically whether G-Staff had an 'organised grouping of employees' whose principal purpose was to work for Butcher’s.
The Tribunal's Decision
The Employment Tribunal (EJ) initially concluded that the change from G-Staff to Mach Recruitment was indeed a service provision change. They determined that G-Staff had an organised grouping of employees primarily dedicated to activities for Butcher's. Mach Recruitment appealed this decision.
The EAT's Reasoning
John Bowers KC, sitting as a Deputy High Court Judge, upheld the Employment Tribunal's decision. He emphasised that while there needs to be some organisation by the employer, it does not necessarily require 'deliberate conscious organisation'. It is sufficient if the employees consistently operate as a team for a specific client. The EAT found that the tribunal had evidence to conclude that the group of Alutray operatives at Butcher's constituted an organised grouping.
The EAT noted that Mach Recruitment provided limited evidence to counter Mrs. Oliveira's claim that she worked with the same individuals. The absence of evidence from the company contributed to the tribunal’s decision. The EAT stated that there must be “the employees organised in some sense by reference to the requirements of the client in question” and concluded this was the case here.
Implications for Employers
This ruling highlights the importance of considering TUPE obligations when changing service providers. Employers must assess whether there is an organised grouping of employees dedicated to a specific client. This case reinforces that even agency workers can form such a grouping, triggering TUPE protections for affected staff.
Organisations should carefully document the roles, responsibilities, and working patterns of staff, especially those assigned through agencies, to determine whether a transfer would engage TUPE rules. A failure to do so could lead to costly employment tribunal claims.
Read the entire judgement here: Mach Recruitment Ltd v Mrs Maria Oliveira [2025] EAT 107
