Under the Transfer of Undertakings (Protection of Employment) Regulations 20026, a service provision change (such as a change in service provider) can only happen where, immediately before the transfer, there is an “organised grouping” of employees based in Great Britain whose principal purpose is to provide the service. Only employees who are permanently assigned to the grouping will transfer.

What is an organised grouping?

There have been several previous decisions on what is required for there to be an “organised grouping”. These decisions point to a requirement for a conscious, deliberate decision being made by the transferor to organise the employees in a particular way for a particular client. 

Case law has established that it is not sufficient for employees to spend most of the time working for a particular client if, for example, it is a consequence of their shift patterns (rather than a decision based on the client’s requirements).

The EAT has now considered the issue again in Mach Recruitment Ltd v Oliveira and shed some further light on the level of organisation required.

What happened here?

The Claimant was employed by a temporary work agency, G-Staff Ltd. She was supplied to work as an Alutray (aluminium tray) Operative for one of G-Staff’s clients, Butchers Pet Care Limited. 

In 2018, the Respondent engaged the Claimant. The Respondent later began providing the alutray services to Butchers, replacing G-Staff. When the Respondent stop offering the Claimant work with Butchers, the Claimant argued that her contract of employment had transferred to the Respondent and she had been unfairly dismissed.

There was a service provision change…

The Employment Tribunal held that G-Staff had an organised grouping of employees whose principal purpose was providing the alutray services for Butchers. G-Staff ending these services and the Respondent starting to provide these services to Butchers amounted to a service provision change. 

The Respondent’s appeal was dismissed, with the EAT finding that the Tribunal had been entitled to find that there was an organised grouping of employees, whose principal purpose was the alutray activities for Butchers, immediately before the transfer. 

… and sufficient evidence of an organised grouping

Although the Tribunal noted that there was a lack of evidence provided by the Respondent about who and how employees were chosen to carry out the services, this was not considered fatal. The Tribunal had found that there was a “settled group” of employees who carried out the services for Butchers. The Claimant always worked alongside the same people (other than when somebody was replaced). The Tribunal concluded that this was more than a coincidence.

Determining whether there is an organised grouping is not a black or white assessment and the EAT did comment that this case could have been decided differently. But that did not mean the Tribunal’s conclusion was perverse. There was a recognition by the EAT that agency work is typically flexible. Even if the staffing levels fluctuated, this did not mean there was not an organised grouping. 

The EAT compared the Claimant’s circumstances with couriers, where allocation to clients is done at random. The couriers would not form an organised grouping. To the contrary, the principal purpose here was servicing Butchers with Alutray Operatives. The EAT thought there must have been “a conscious decision of some sort that it should be organised in that way” to satisfy Butcher’s needs. 

What are the practical TUPE takeaways?

This decision suggests that there doesn’t always need to be a “literally conscious decision” around organised groupings. In some circumstances, it can be enough for employees to consistently operate with the same group of employees. This is particularly important to consider in the context of flexible working arrangements. 

This is arguably a lower threshold than what has been established in previous decisions. However, it will still be insufficient if employees just happen to carry out the majority of their work for a particular client or if they are allocated client work at random. There must still be an element of deliberate organisation, with the employees identifiable as members of that client’s team.

This decision suggests transferors and transferees should not take an overly technical assessment of “organised grouping”. Nevertheless, transferors seeking to argue that that there is an organised grouping (and that TUPE applies) should still collate evidence which shows how employees have been deliberately organised, such as organisation charts or team lists. 

Transferors should then go on to consider what evidence demonstrates which employees are permanently assigned to that grouping. This could include looking at job titles, cost centres, email circulation lists or meeting invites. 

Having this evidence will assist both parties assess whether there is a service provision change and who is expected to transfer.

Getting in a TUPE tangle? Contact our team for support.

Mach Recruitment Ltd v Oliveira [2025] EAT 107- judgment available here.