Mr J Opoku and Mr E Asare v Fab Maintenance Ltd and Epos Direct Ltd: 3309074/2024 and Others
JUDGMENT
[1]The Claim that John Opoku is a relevant Employee Representative under regulation 14 of the TUPE regulations 2006, is not well founded and is dismissed.[2]The claimant John Opoku was an Employee of John Luthers Ltd at the time of the relevant transfer. Approved by: Employment Judge Codd 21October 2025 Case Number: 3309074-6/2024 10 November 2025 For the Tribunal Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.[1]There was no TUPE transfer in accordance with Regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the “TUPE Regs”), by way of a service provision change or otherwise, between the first claimant’s company John Luthers Ltd and either of the respondents.[2]The claimants’ claims of unfair dismissal, wrongful dismissal (for failure to pay notice) and a protective award under the TUPE Regs are all unfounded and dismissed.[3]For the avoidance of doubt, the second claimant had insufficient qualifying service to pursue a claim of ordinary unfair dismissal in any event.[4]The claimants’ claims of unpaid wages and holiday pay are dismissed upon withdrawal. Again, for the avoidance of doubt, those claims would have been unfounded had they not been withdrawn.REASONS
[5]By way of a claim form issued on 11 September 2024 the claimants brought complaints of ordinary unfair dismissal, wrongful dismissal (breach of contract – failure to pay notice), unauthorised deduction of wages, failure to pay holiday entitlement and a protective award for failure to inform and consult under the TUPE regs. In short, the claimants say there was a service provision change on 14 July 2024 on the basis, they say, that activities they were undertaking for the first claimant’s company (John Luthers Ltd) were taken back in house by either the first or second respondent. The respondents defended the claims.[6]The matter came before EJ Davey for a Preliminary Hearing (“PH”) on 9 July 2025. I do not propose to repeat what is contained in the summary of that hearing. Suffice it to say that the matter was listed for a Public PH to determine whether the first claimant was an employee of John Luthers Ltd at the relevant time (14 July 2024) and whether he was a representative under reg 14 of the TUPE regs.[7]The matter then came before EJ Codd on 21 October 2025 who determined that the claimant was not a representative for the purposes of reg 14 but was an employee of John Luthers Ltd at the relevant time. Written reasons were not requested and so there is no available formal record of the reasons for that decision. I do not, however, consider that to have presented any difficulties in disposing of this case in the manner that I have decided.[8]The case was then listed for one day to determine in essence whether there was a TUPE transfer by way of a service provision change so as to give rise to the claims identified above. I have made some observations about the record EJ Codd made of the claims and issues below in the section recording the issues I had to resolve in this case. Evidence[9]Prior to the start of the hearing the tribunal was provided with an electronic bundle from the first claimant (consisting of 168 pages including an index). As well as documentary evidence, the bundle contained the witness statements of both claimants, schedules of loss and a combined skeleton argument for both claimants. The respondents (both of which are companies owned by Mr Francis Boakye) provided their own separate bundle consisting of 50 pages. There was no index. Furthermore, Mr Boakye had not provided a formal witness statement for the respondents. The claimants were content to continue regardless (as was Mr Boakye) despite this departure from what had been ordered. It was agreed that I would treat the content of the Response form as Mr Boakye’s evidence in chief along with the document prepared in readiness for the hearing at the start of the respondents’ bundle.[10]The documentary evidence produced by each of the parties largely fell short of what might be expected when determining a case of this kind, probably because neither side had the benefit of legal representation. The majority of my findings of fact stem from an analysis and assessment of the oral evidence given by each of the witnesses, none of whom I found to be particularly compelling. Indeed at times I had the distinct impression that certain testimony given in response to my enquiries was deliberately evasive and equivocal. I have recorded below where this had a bearing on my findings of fact.[11]I heard evidence from the first claimant first. I interpose here that I refer to the first claimant as “the claimant” for the most part hereafter given that he took the lead in the way the case was presented on behalf of both claimants. After the first claimant concluded his evidence, I heard from the second claimant. At all times below I refer to Mr Asare by name or as the second claimant. After taking a break for lunch slightly later than usual, I heard evidence from Mr Francis Boakye on behalf of the respondents. At the end of the day I heard submissions on behalf of the respondents and then the first and second claimants in that order. I allowed the respondents a brief right of reply.[12]The case listing was woefully short given the matters to be decided and I therefore had no alternative but to reserve my decision. I did indicate that it would most likely be a number of weeks before the parties would receive my Judgment but I was nevertheless able to record my findings of fact early on whilst the evidence was fresh in my mind. With the agreement of the parties, I listed a provisional remedy hearing for one day on 13 April 2026. That has now been removed as the claimants’ claims have been dismissed.The issues
[13]The issues identified by EJ Codd in his Case Management Summary were broad in nature and did not specifically list the legal test that is applicable in determining whether there was a transfer by way of a service provision change. Furthermore, determining whether the second claimant was an employee of the transferor at the relevant time was an inherently necessary issue to resolve as part of the relevant legal test.[14]At the start of the hearing the claimants indicated that they were no longer seeking to claim unauthorised deduction of wages or unpaid holiday. Those claims were dismissed upon withdrawal. All parties accepted that the complaints of unfair dismissal, wrongful dismissal and protective award stood or fell on the determination as to whether there had been a TUPE transfer. Accordingly it was not necessary to outline particular issues that might ordinarily apply in relation to those claims.[15]Having discussed the nature of the claims and the fact that EJ Codd had framed the complaint as “failure comply with the TUPE Regulations 2006 [sic]” rather than repeating those identified in the Summary of EJ Davey following the PH in July 2025, everyone agreed that they understood the case they had to meet today and everyone was willing to proceed accordingly.[16]Therefore the refined issues for this final Hearing were as follows: 16.1. What were the activities performed by the claimant’s company JL Ltd? 16.2. Were these activities fundamentally the same as those carried out by the employees of the respondent after any purported transfer? 16.3. If the activities did remain fundamentally the same, was there an organised grouping of employees which had as its principal purpose the carrying out of the activities on behalf of the client immediately before the transfer? 16.4. Did the exceptions in Regulation 3(3)(a)(i) and (b) of the TUPE Regs apply? 16.5. If there was a transfer by reason of a service provision change, were the two claimants assigned to the organised grouping of employees?Findings of fact
[17]At all material times the claimant owned and ran his own business through a number of companies one of which was John Luthers Ltd (“JL Ltd”) of which he was sole director and shareholder. In December 2023 the claimant set up another company from which he also operated from called Golden Standard Commercial Cleaning Ltd (“GSCC Ltd”) which had a turnover of circa £125,000 between January 2024 to December 2024 and continued trading thereafter with a similar estimated annual turnover for 2025 of £125,000. The claimant gave evidence that GSCC Ltd made a profit of around £20,000 per year from its inception. The claimant says he began paying himself a salary of £1,000 per month from GSCC Ltd in September 2025 but provided no documentary evidence at all relating to that company. He confirmed in evidence that as well as the business he carried out through JL Ltd, he also engaged people to work in commercial cleaning at various offices through the vehicle of GSCC Ltd.[18]From 2016 to July 2024, the claimant, through JL Ltd, sub-contracted with the second respondent named in these proceedings, Epos Direct Ltd (t/a Epos Direct Property Maintenance) (hereinafter referred to as ‘the respondent’) which is owned by Francis Boakye, to supply labour as and when required in respect of various tasks to which I refer below. Mr Boakye is and was at all relevant times a director and majority shareholder of the respondent. I interpose here that the claimant has also named another company belonging to Mr Boakye as the first respondent, FAB Maintenance Ltd (“FAB”), but I am satisfied that the correct respondent in these proceedings is Epos Direct Ltd. Other than the claimant sending invoices to FAB for work carried out by his company, JL Ltd, there is no other reference to FAB. Indeed in the bundle of evidence before me there is material on the respondent’s headed paper and the email addresses used by the various protagonists to whom the claimant was communicating would seem to belong to the respondent.[19]Since 2016 the claimant (through JL Ltd) was sub-contracting with the respondent to provide labour to undertake a variety of tasks at no less than two sites, namely Park Royal Warehouse and a production site for Kolak Snack Foods Ltd (t/a Europe Snacks), the end-client, in Stevenage. In so far as it is relevant, Europe Snacks produced crisps and possibly other confectionary for wholesale. Very little evidence was provided regarding the activities at Park Royal Warehouse and it is not clear to me whether this site was also owned by Europe Snacks but Mr Boakye confirmed in evidence that this was a different site in North London. Again, there is very little in the way of documentary evidence but from the material before me and on the basis of the oral evidence of the witnesses, there is little dispute that in the early years of that arrangement, the activities that the claimant was carrying out through JL Ltd was the supply of labour to assist with the commercial cleaning of factory machinery within what was described as the ‘storm area’ and ‘PUB area’, and also painting and decorating. Indeed, the claimant accepted that the nature of JL Ltd’s business as recorded at Companies House was not limited to commercial cleaning. It referenced “Plastering, Painting, other building completion and finishing, Other cleaning services”. Certainly in relation to the activities at the Stevenage site, much of the work took place at the weekends to avoid disturbing the production line operation that was running during the week.[20]In or around 2021 or 2022, available work for the claimant’s staff ceased at the Park Royal Warehouse. Sometime later the work that the claimant’s staff were doing on Saturdays in Stevenage also ceased and certainly by the beginning of 2024 the only available work left for them to undertake was cleaning of the PUB line machinery on Sundays.[21]Throughout the same period, the respondent also had its own staff on site at Stevenage carrying out commercial cleaning of machinery in other areas of the factory (amongst other things). Mr Boakye gave evidence that the respondent employs circa 300 individuals and is in the business of supplying temporary workers to provide labour to various production companies and other commercial sites. The respondent had employees at both the Park Royal warehouse and the Stevenage site. At the Stevenage site, the respondent had employees undertaking a variety of tasks including assisting in the production lines and machine operating, packaging products, and also commercial cleaning of the machinery. Prior to July 2024 there were two lines of machinery at the Europe Snacks site that needed cleaning: Stacker Line A and the PUB line. Both lines are very similar in terms of cleaning requirements. Both lines would for the most part be cleaned at the weekend when the production for the week had ended. Those employees of the respondent who undertook commercial cleaning of the stacker/production line also worked as operatives on the production line in the week. There were around 100 production workers at the site. Around 20 to 30 of those individuals were also engaged at the weekend (either Saturday or Sunday) to undertake the production line cleaning. They would usually be the employees who had worked less than five days in the week on the production line who were looking to top up their working hours. In essence, the respondent would engage those who needed or wanted their hours topped up to clean the production line at the weekend. They would be paid a higher rate for the cleaning work to reflect the fact that it was undertaken at the weekend and provide an incentive to those employed on the production line to engage in the production line cleaning. The respondent also provided general cleaning services at the site.[22]I am satisfied on the evidence that there was nothing uniquely technical or specialist about the cleaning of the production lines although both the respondent and the end-client did provide training to the respondent’s own staff and staff of the claimant on the process to be followed and materials to be used. There was no evidence before me as to who was required to attend the training from those engaged by the claimant through JL Ltd. The claimant would attend site the following Monday or Tuesday to meet various managers and review the weekend work with the client representatives and the respondent and submit a “satisfaction sheet” for signing confirming that the client was happy with the work provided by his staff and that the cleaning had gone to plan. Thereafter he would invoice for the work. Despite sending those invoices to Mr Boakye’s other company, FAB, there is no doubt that the contract to provide the cleaning labour on Sundays was with the respondent.[23]The claimant (via FAB) invoiced the respondent weekly for total hours worked, typically around 250 hours, at a rate of circa £15.12 per hour for each and every individual who he had arranged to attend each shift. He then paid his staff a lower rate that he had agreed with them of between £11.35 and £13.85 per hour, thus profiting from their labour.[24]By May 2024, the claimant was routinely deploying between 20 and 30 individuals to carry out the production line cleaning on a Sunday. In the evidence before me the claimant had provided a limited number of roster attendance sheets showing various names who the claimant said attended on the following sporadic dates: 17 November 2019 (8 names), 26 February 2023 (23 names), 3 September 2023 (31 names), 4 February 2024 (30 names), 3 March 2024 (26 names), 28 April 2024 (27 names), 5 May 2024 (27 names). No explanation was offered as to why these appear to be random dates. I accept that the later sheets (specifically the last two) appeared to show that the people making up those in attendance seemed to be the same on those occasions. I note however that the only other attendance sheet provided by the claimant was the attendance sheet for the last day his staff attended on 14 July 2024 which I come to below. Notably on that occasion there were only 21 individuals in attendance rather than 27. Additionally, by way of comparison with those who attended on 5 May 2024, six of the 21 attendees on 14 July 2024 were different to those who attended on 5 May 2024. That suggested a significant variation in identity of those who attended Stevenage from week to week. Furthermore, I note that on the 14 July 2024 attendance sheet, some individuals names appeared to be spelled incorrectly and one individual was identified by their first name only. I find this particularly surprising if these individuals were in fact employees of JL Ltd working under a contract of employment. Save for Mr Asare, the second claimant whose status I address below, I do not accept the evidence of the claimant that the individuals listed on these roster attendance sheets were actual employees of the claimant, through JL Ltd. I consider that on the balance of probabilities they were casual workers who would offer their labour at will as and when the claimant required them and when they were prepared to work.[25]When I asked the claimant in oral evidence about who he employed specifically on the cleaning work at Europe Snacks, he was extremely vague in his evidence. He seemed unable to say who in particular made up any identifiable group. I was also unconvinced by his evidence about whether these individuals were also employed or engaged in other work by him in a manner that enabled him to profit from the provision of their labour elsewhere. Indeed, the claimant advanced in evidence that when the work ceased at Europe Snacks in July 2024, at least two of the individuals who had been undertaking that work for him were redeployed by him to work for clients he was contracting with through his other company GSCC Ltd (of which he was also sole owner and director). I am not satisfied on the evidence that those individuals who he supplied to work at Europe Snacks up until July 2024 were operating exclusively or mainly as a dedicated team on that task rather than generally as part of his wider business of supplying labour to various clients through the vehicles of JL Ltd and GSCC Ltd.[26]The claimant was not forthcoming about how his other company, GSCC Ltd managed to generate a turnover of £125,000 also by way of commercial cleaning during 2024, around the same time the contract between JL Ltd and the respondent came to an end. Given that the claimant was sole owner and director of both companies, I find on the balance of probabilities that the claimant was using both GSCC Ltd and JL Ltd as service companies as vehicles by which he ran his overarching commercial cleaning business. Furthermore, the claimant through GSCC Ltd must have been dependent on labour to generated such a high turnover. The claimant failed to explain who was providing that labour and I find on balance that the claimant was engaging some or all of the casual workers he relied on to undertake the PUB line cleaning, to also undertake commercial cleaning at numerous alternative sites with whom he had entered contracts through his other company, GSCC Ltd.[27]In accordance with the Judgment of EJ Codd, the claimant was and is an employee of JL Ltd. Indeed, notably when the claimant was asked directly by EJ Davey whether he was still an employee of JL Ltd at the Preliminary Hearing in July 2025, the claimant confirmed that he remained on the company’s pay roll although he asserted that he was ‘more or less not an employee’ because he was receiving no income from employment. Nevertheless, he remained on the payroll of JL Ltd as at July 2025 unlike all the other individuals who he says worked as cleaners of the production line machinery at the Stevenage site on Sundays most of whom he claimed had had their engagements terminated. The claimant confirmed in evidence that some of those individuals (he says two) were redeployed to work as commercial cleaners for clients he contracted with via his other company, GSCC Ltd and the remainder have had their engagements terminated by him. Other than the second claimant, Mr Asare, none of the circa 30 individuals have been called to give evidence and the claimant is not aware of any of them bringing any form of tribunal claim.[28]I reject the claimant’s assertion that he was just another member of the workforce engaged to undertake the cleaning at the Stevenage site, albeit in a supervisory capacity. I am more than satisfied on the evidence before me, particularly the oral evidence tendered by each of the witnesses, that the claimant was at all times acting as recruiter, organiser, administrator and facilitator of the work that was being undertaken at the Stevenage site as part of his entrepreneurial business that he was operating on his own account and from which he stood to personally profit. Unlike the rest of the workforce whose function was to undertake the cleaning only, he coordinated attendance, organised and transported workers from London, and liaised with the end-client’s managers on Mondays or Tuesdays regarding the quality of the cleaning. All of that was done in his capacity as the business owner. In so far as he happened to be present on site when the cleaning was undertaken, he was there to ensure the work was being carried out to the standards he expected and in his capacity as business owner. Indeed, it is notable that through his company JL Ltd, he employed a succession of supervisors to be present, the last of whom was the second claimant, Mr Asare. In the documented communications in evidence before me, the claimant refers to his own company insurance that covers those who work under his management.[29]Notwithstanding that the claimant contends that he acted in an employee capacity for the purposes of this claim, it is undisputed that the claimant was and remains the sole director and shareholder of JL Ltd and set his own salary. Significantly the claimant accepts that his employment has not and did not come to an end by reason of any purported transfer because he maintains that he continues to be employed by JL Ltd. I am also satisfied and find as fact on the balance of probabilities from the evidence I have heard that he carried on engaging in his business of supplying labour in the form of commercial cleaning through his other corporate vehicle, GSCC Ltd, that co-existed at the time the respondent ended the contract with JL Ltd to supply labour for cleaning the production line machinery at Stevenage.[30]In early June 2024, concerns arose regarding the fact that the claimant was engaging an operative to work on the production line cleaning who was also employed directly by the end-client during the week. The respondent communicated to the claimant that this individual could not continue working weekends due to concerns that this created a conflict as raised by the end-client. The claimant says he withheld the operative from attending but continued to pay him. Notably, when Mr Boakye texted the claimant about the issue on 7 June 2024, he indicated that the respondent would send a replacement saying “two guys will come from us, so amend your numbers”.[31]The claimant says that following that instruction he withheld the operative from attending but continued to pay him in the expectation of resolving the dispute.[32]On 5 July 2024 Mr Boakye emailed the claimant as follows: “Hi OJ, I did explain to you the reason why [the operative] cannot work for us [emphasis added] anymore, but you’ve ignored me and still bringing him to site. Please note the following: From this weekend we will bring someone to do what he does under our own supervision. Both the new person and KB will start from 9.00 till finish. Reduce your numbers by two from now on. Regards Francis”[33]In the claimant’s response to this email of the same date he made reference to a subsequent phone call between him and Mr Boakye during which he says Mr Boakye made clear that if the claimant continued to engage the operative against the wishes of their “mutual client”, then the respondent would terminate the arrangement with the claimant’s company and have its own operatives undertake the additional cleaning work. It seems the claimant was seeking to persuade Mr Boakye to allow the operative to continue attending to clean at the weekend. He also told Mr Boakye that if the operative had to go, the claimant would arrange a replacement to attend rather than Mr Boakye providing a staff member.[34]Evidently Mr Boakye was unhappy with the claimant’s position because on 12 July 2024, he informed the claimant that he and his team should not attend the site on 14 July as he had decided that the respondent would take over the additional cleaning process in which the claimant’s operatives were engaged. Mr Boakye invited the claimant to provide the names of any of the claimant’s operatives who were happy to continue working with the respondent as “they are more than welcome through our process. Please share the names of those who are willing to join by tomorrow.” . I find that no consultation or discussion of alternatives took place following that communication.[35]In reply, the claimant asserted that the respondent had given too short notice to terminate the weekend job unless the respondent was “willing to pay us and staff in lieu of notice period [sic].”[36]On 14 July 2024, the claimant and his team attended the site and observed that approximately 30 operatives of the respondent were undertaking the same cleaning activities previously carried out by the claimant’s workforce. The claimant and his team were instructed to leave. The respondent accepted that it instructed its own production staff who were also responsible for cleaning Stacker line A to carry out the additional cleaning of the PUB line from that date onwards. Accordingly, the contract between the claimant’s company, JL Ltd and the respondent came to an end on 12 July 2024 and from 14 July 2024 onwards the cleaning of all production line machinery was carried out by employees of the respondent.[37]In subsequent communications between the claimant and Mr Boakye the claimant makes reference to holding a meeting with the respondent and “one of our supervisors, representing the rest of the employees and myself representing John Luthers Ltd”.[38]The only contract of employment provided in evidence was that of Mr Asare, the second claimant. According to that contract, which on the face of it appears to have been signed by the claimant and Mr Asare on 26 February 2024, Mr Asare commenced employment as supervisor at the Stevenage site on 1 March 2024 for one day per week namely Sunday from 9am to 5pm for a monthly gross salary of £1,200. Rather like the evidence of the claimant, I did not find the oral testimony of Mr Asare to be persuasive either. He claimed that he had started employment with the claimant in January 2024 and the reason his contract said something different was because he had been on probation during that time and only approached by the claimant in February 2024 with the offer of a permanent contract. That does not explain why the date for continuous employment in clause 4 of that contract refers to 1 March 2024. It also appears inconsistent with the fact that the contract provides for Mr Asare to undertake a period of probation for a month from 1 March 2024 (clauses 9 to 12). When I asked why Mr Asare appeared on the Roster attendance lists in February and September 2023, he claimed this was because he was training on those days and did not start until January 2024. I consider that implausible not least because it would make no sense to attend ‘training’ so spread out and so far in advance of starting the role at the beginning of 2024.[39]I reject that evidence from Mr Asare and find instead that he, like others who were engaged to clean the machinery at the Stevenage site, attended on a casual basis to do the work as and when it was offered to them and they were willing to do it. Given the claimant’s equivocal answers in evidence and the absence of any documentation supporting the assertion that he had a group of employees who were specifically engaged to undertake the work at Europe Snacks in Stevenage, I find it much more probable that the claimant engaged people on a casual basis as and when required. That said, I accept that the claimant employed Mr Asure to act as supervisor albeit from 1 March 2024 and not January 2024 as asserted by them both. Even on the case advanced by the claimant and Mr Asure (rejected by me), it is accepted that Mr Asure was not an employee prior to January 2024 and so only had continuous employment of a matter of months as at the date the contract between JL Ltd and the respondent was terminated. Summary of the relevant law[40]An outline of the relevant legal principles that the tribunal has applied in this case is set out below. It is not an exhaustive commentary of the law but is instead a proportionate summary only.[41]Under regulation 3(1)(b) of the TUPE Regs, a relevant transfer of an undertaking includes a service provision change (“SPC”). An SPC occurs when there is a change in the provider of a service, such as outsourcing, insourcing, or a change in contractor.[42]To determine whether there has been an SPC under regulation 3 of the TUPE Regs, a tribunal must assess whether the situation involves a change in the provider of a service, whether the conditions under regulation 3(3) are satisfied, and whether the activities carried out by the alleged transferee are fundamentally the same as those carried out by the alleged transferor. The appellate courts have reminded tribunals that they must identify the activities being carried out by the putative transferor and thereafter the putative transferee and assuming they are fundamentally or essentially the same, evaluate whether there was an organised grouping of employees carrying out those activities. Tribunals should follow a structured approach to ensure a thorough analysis of those considerations and that the determination is consistent with the legal framework and principles established under the TUPE Regs.[43]Accordingly, the tribunal must start by evaluating whether the activities carried out by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor. Minor differences in the nature or mode of performance of tasks do not necessarily prevent an SPC, but significant differences may mean the change is not caught by the SPC provisions (Tuitt v London Borough of Richmond Upon Thames [2022] IRLR 1035, EAT). This assessment requires a common-sense and pragmatic approach (Salvation Army Trustee Co v Bahi and ors [2017] IRLR 410, EAT and Metropolitan Resources Ltd v Churchill Dulwich Ltd and ors [2009] ICR 1380, EAT). Differences in the manner or details of service delivery may prevent the application of the SPC provisions (OCS Group UK Ltd v Jones and anor EAT 0038/09). For example, providing a service in a novel or innovative way could result in the change not being caught by the SPC provisions.[44]For an SPC to occur, immediately before the putative SPC there must be an "organised grouping of employees" whose principal purpose is to carry out the activities concerned on behalf of the client. This grouping must be deliberately organised for this purpose. The requirement for an "organised grouping of employees" ensures that the employees affected by the transfer are specifically assigned to the activities being transferred. If a tribunal will fall in to error if it solely confines its consideration to the principal purpose of a putative grouping without first considering whether an actual grouping existed and, if so, whether it had been intentionally formed (London Care Ltd v Henry and ors EAT 0219/17). Case law such as Eddie Stobart Ltd v Moreman and ors [2012] ICR 919, EAT, highlights the importance of deliberate organisation, as opposed to ad hoc arrangements where employees happen to work on tasks benefiting a particular client.[45]Regulation 3(3) of the TUPE Regs also sets out additional conditions for an SPC. Under Reg 3(3)(a)(ii) immediately before the SPC, the client must intend the activities to be carried out by the transferee on an ongoing basis other than in connection with a single specific event or task of short-term duration. Likewise, under Reg 3(3)(b), the activities must not consist wholly or mainly for the supply of goods for the client’s use.[46]Numerous authorities have provided guidance as to the staged approach to be followed by tribunals when determining whether there has been an SPC under the TUPE Regs (Metropolitan Resources Ltd v Churchill Dulwich Ltd and ors [2009] ICR 1380, EAT, and Rynda (UK) Ltd v Rhijnsburger [2015] ICR 1300, CA), perhaps most helpfully the staged approach identified by HHJ Clark in Enterprise Management Services Ltd v Connect-Up Ltd and ors [2012] IRLR 190, EAT which form the basis of the issues to be determined in this case.[47]Even if there was an organised grouping of employees that met the definition required by the TUPE Regs, the tribunal must also determine whether or not a particular employee was assigned to that grouping. It is therefore essential to consider whether the particular claimants were assigned to the service provided by the transferor. Botzen and ors v Rotterdamsche Droogdok Maatschappij BV [1986] 2 CMLR 50, ECJ is the seminal case in this regard. Furthermore, the EAT in Edinburgh Home-Link Partnership and ors v City of Edinburgh Council and ors EATS 0061/11, made the point that, in an SPC case under reg 3(1)(b), it is not to be assumed that every employee carrying out work for the relevant client is ‘assigned’ to the organised grouping. An employee might only be helping out on a temporary basis or might have a strategic role directed towards the survival and maintenance of the transferor rather than towards the provision of services to the client. Applying the law to the facts[48]Applying the law to the facts I resolve the issues as follows: What were the activities performed by the claimant’s company JL Ltd?[49]By the relevant date that the transfer is alleged to occurred, 14 July 2024, the activities of JL Ltd were limited to the cleaning of the Pub Line machinery only on Sundays. Were these activities fundamentally the same as those carried out by the employees of the respondent after any purported transfer?[50]On the evidence before me, I am not satisfied that the activities remained the same. There was a substantial difference between the activities of the respondent employees and the activities of the purported employees of JL Ltd. Whilst the activities of the respondent’s employees subsumed the cleaning of the PUB Line machinery, this was incidental to their far wider activities of both operating and cleaning the remaining production line machinery. Cleaning of the PUB line machinery became a fraction of what the employees of the respondent were employed to undertake. Furthermore the cleaning of that specific machinery was not restricted to being carried out on a Sunday as it had been with JL Ltd. The respondent’s employees were predominantly working on the production line but were also responsible for cleaning Stacker Line A. Their cleaning requirements including that of the PUB line machinery in addition to Stacker Line A machinery were incidental to the activities they carried out in relation to operating the production line machinery. If the activities had remained fundamentally the same was there an organised grouping of employees which had as its principal purpose the carrying out of the activities on behalf of the client immediately before the transfer?[51]Even if I am wrong in my conclusion that the activities carried out by the respondent after the purported transfer date were not fundamentally the same, on the facts found from the evidence before me there was no organised grouping of employees that had as its principal purpose the carrying out of those activities. The claimant failed to provide any evidence that the individuals he says he supplied to do the cleaning work were in fact employees of JL Ltd other than the second claimant Mr Asare. I have found as fact that those individuals were casual workers who the claimant engaged from time to time as and when he needed their assistance and when they were willing to attend. Furthermore, on the facts found, certain individuals engaged by the claimant through his company, JL Ltd appear to have been engaged in other commercial cleaning work, albeit that the claimant asserted that this occurred after the termination of the contract between JL Ltd and the respondent. I have determined from an assessment of the evidence that, on the balance of probabilities, those who the claimant engaged to work on the cleaning of the PUB line were casual staff who attended at will and not employees of JL Ltd and therefore were not obliged to attend on any particular occasion. Furthermore, at least some if not most of those individuals were most probably not specifically engaged to work for the respondent exclusively but were carrying out commercial cleaning for the claimant at other sites. It follows that there was no organised grouping of employees which had the principal purpose of carrying out the activities of PUB line cleaning before the contract between the respondent and JL Ltd was terminated. Did the exceptions in Regulation 3(3)(a)(i) and (b) of the TUPE Regs apply?[52]Clearly this was not a contract wholly or mainly for the supply of goods for the client’s use. The respondent did endeavour to argue, however, that it was a contract that was for a single specific event or task of short-term duration that fell under reg 3(3)(a)(i). I reject that assertion. This was work that was required to be carried out regularly for a number of years and was not, therefore, a single specific event or task of short-term duration. Accordingly those exceptions do not apply. If there was a transfer by reason of a service provision change, were the two claimants assigned to the organised grouping of employees?[53]Again, I have no hesitation in concluding that neither claimant was assigned to an organised grouping of employees that carried out the activities alleged to have purportedly transferred. It is plain from the evidence that the activity that is alleged to have transferred is the cleaning of the PUB line machinery. Notwithstanding the fact that he might have been present on site from time to time, the first claimant was not part of the group undertaking that work. He held a strategic and top level role directed towards the survival and maintenance of his own business, JL Ltd of the kind referred to in Edinburgh Home-Link Partnership and ors (above). He was employed by his own company JL Ltd (which was, for all intents and purposes a service company through which he could operate his entrepreneurial endeavours), to negotiate and administer the contractual arrangements between JL Ltd and the respondent to ensure that the respondent received the necessary labour to undertake the cleaning of the PUB line machinery. It is significant that on his own case he continued to be an employee of that company after the contract between JL Ltd and the respondent ceased. If JL Ltd had obtained other contracts with other commercial undertakings, no doubt he would have carried on in exactly the same role that he was performing for JR Ltd in relation to those other clients. He was in essence operating his own entrepreneurial business through JL Ltd and he was not part of any purported organised grouping of employees undertaking the work that is alleged to have transferred.[54]As for Mr Asare, the second claimant, had there been a transfer I am again not satisfied that he would have been part of the organised grouping of employees. True it is that as of March 2024 he was employed by the claimant, through JL Ltd, to supervise the casual workers who attended from time to time to undertake the cleaning of the PUB line and, of course, a grouping can be made up of a single employee. However, the actual cleaning activity was carried out by plurality of individuals and applying the correct legal principles (Ceva Freight (UK) Ltd v Seawell Ltd [2013] IRLR 726, Ct Sess inner house) it is not legitimate to isolate the second claimant from the rest of those undertaking the task simply because he devoted all of his time to assisting in the collaborative effort. Liability Summary[55]It follows therefore that because there was no transfer, the respondent was not in breach of any obligation to inform or consult (and it is far from clear what the allegation is against the respondent in this regard) nor could it be said that the respondent unfairly dismissed either of the claimants. As for the second claimant, he did not have sufficient qualifying service to pursue a claim of unfair dismissal in any event.[56]Therefore the remedy hearing listed for 13 April 2026 is now cancelled. Approved by: