Mr A Hutcheon v Deepocean Guernsey Ltd and Others: 4109349/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4109349/2021Venue AberdeenHearing 13 December 2022
Between
Mr A HutcheonClaimantDeepocean Guernsey Ltd and OthersRespondent
Before
Employment Judge J M HendryDate 16 March 2023
JUDGMENT
[1]That the Tribunal has jurisdiction.[2]The claimant’s employment with Deep Ocean Guernsey Limited transferred by the operation of Regulation 3(1)(b)(ii) of the Transfer of Undertakings ( Protection of Employment) Regulations 2006 on the 4 January 2022 to the Second Respondent OSM Maritime Crew Limited.
REASONS
[3]A preliminary hearing took place by CVP on 13 December 2022 to determine whether a “TUPE” transfer had occurred in January 2021 which had the effect of transferring the claimant’s employment contract to the Second or Fifth Respondent (R2 and R5) and whether the Tribunal had jurisdiction.[4]The background is that the claimant raised proceedings for unfair dismissal on the termination of his employment contract as an Able Seaman with the first respondent.[5]The proceedings were case managed by Judge Hosie who had identified the two preliminary matters. In his Note dated 22 July Judge Hosie explained that he had hoped to be able to determine the issues on the basis of detailed written submissions and a joint statement of agreed facts. Written legal submissions were duly prepared by parties and lodged (but Judge Hosie indicated that was unable to do determine the matter, indicating that for him the “sticking point” was the issue of whether or not there had been an “organised grouping” of employees. Accordingly, a 5. Unfortunately, Judge Hosie was not available to deal with the hearing. I should extend my thanks to parties for their assistance in providing a summary of background matters which was of assistance. I should also record that prior to the hearing the claimant’s solicitor lodged a second Joint Statement of Agreed facts in relation to territorial jurisdiction and some further supporting documentation. The Tribunal had also previously received a bundle of relevant documents including a Joint Statement of Agreed Facts relating to the wider context of the case. Both Statements are incorporated in the Judgment.[6]Having read the written submissions at the start the hearing I asked parties to briefly summarise an outline their positions firstly in relation to jurisdiction and then secondly to address the issue of whether or not there had been a TUPE transfer.[7]The claimant’s solicitor’s position was, broadly, that the Tribunal had jurisdiction. This was both because he was a Mariner and in the alternative because of the “substantial connection test” would give the Tribunal jurisdiction in any event. His client, he said, was part of an organised grouping of labour and that the facts were sufficient to support a transfer under the TUPE Regulations both a “standard” transfer and a service provision change (SPC).[8]Ms Krecheler had also lodged written submissions. She acted for the first respondent (R1) explained that her client’s position was that jurisdiction properly resided in Guernsey. Her clients position was that no TUPE transfer had taken place. They had simply supplied crew under an agreement to do so and that contract had been terminated and no issue of a transfer had arisen.[9]Mr Hay’s position was that the respondents (R2 and R5) were neutral in relation to question of jurisdiction but took issue with the suggestion that a TUPE transfer had taken place. His position was that there was no organised grouping to transfer. It was not disputed that R1 had supplied maritime crew to the owners of the M.V. Deep Vision. The contract was for * the supply of labour. The contract was terminated and employees such as the claimant made redundant. No economic entity had transferred or retained it’s identity to do so.
Evidence
[10]The Tribunal heard evidence from the claimant, Alexander Hutcheon. He gave evidence in relation to the background to his employment and the arrangements made by the various respondent companies as far as he was aware and had experienced. He was taken to the various documents lodged in the Bundles and outlined the history of his employment. io 11. Essentially, he had enjoyed stable long-term employment with R1 working as an Able Seaman on M.V. Deep Vision in the North Sea from June 201 1 onwards until his employment was terminated on the grounds of redundancy on 4 January 2021. He did not know the commercial background or the arrangements made ‘behind the scenes’. His position was that he was a crewman dedicated to the M.V. Deep Vision along with a stable long term group of crew supplied by the same company (R1). His employment on the vessel was uninterrupted and regular and back to back with another crew mostly supplied by R1 on the same long term basis. He then went into the detail of the crewing arrangements explaining that he was part of a maritime crew of eight who were employed by R1 and assigned to the vessel. The back-to-back crew contained 7 employees of R1. He explained that the R1 staff were not the full complement of the vessel but the bulk of the crew. He regarded himself as having a regular job as an Abie Seaman aboard the vessel which was British flagged, registered in Aberdeen and worked mostly in the UK territorial waters in the UK North Sea oil and gas fields. Jurisdiction[12]I replicate here the Statement of Facts in relation to Jurisdiction. 1 . The claimant lives in Buckie, in the region of Moray, Scotland, Great Britain and the United Kingdom. 2. When employed by the first respondent, the claimant was paid his wages in pounds sterling. He paid his tax and national insurance contributions to HMRC UK treasury. His tax district was noted on his payslips as “Cumbernauld”. 3. The claimant received a P60 and P45 in relation to his employment with the first respondent. 4. The flag state of the Deep Vision vessel the claimant worked on was the United Kingdom. 5. His most recent contract of employment confirms that:(a) 5. Location Allowance Europe outside UK £1.60 per day Mediterranean including North Africa £2.70 per day Gulf and Red Sea Far East, West and East Africa, South Africa, Central America and West Indies £3.00 per day Japan £3.00 per day Canada £4.00 per day(b) 9. Location Allowance “A Location Allowance at the rates shown in Appendix 1 will be paid to all UK ratings serving on Company Vessels based overseas [..] the object of Location Allowance is to cushion UK staff against lack of amenities”.(c) 11. Tours of Duty “The work rotation in the North Sea, Mediterranean and North Africa Areas will be 4 weeks service, counting from the day the rating reports back for duty until the day the rating is relieved and leave counting from the day after the rating is relieved, until the day the rating reports back for duty/ 5(d) 13. Leave Travel “The company will provide a rail or air ticket to the nearest home town railway station or airport for each leave entitlement.”(e) 22. Pension “All ratings are free to join the Merchant Navy Ratings Pension Plan in which case the Company will pay the Employer’s contributions required under the rules of the Fund”.(f) 24. Conduct “Ratings shall at all times act in accordance with the Code of Conduct for the Merchant Navy”.(g) 26. Redundancy “In the event of a redundancy situation, for those ratings who joined the Company after 1 January 2013, they will receive redundancy payments and notice in line with the statutory UK Government Payment scale”. 6. The claimant attended Helicopter and Firefighting training in Aberdeen every two years, a Medical Assessment in Aberdeen or Peterhead every two years, and Seafarer’s Safety Training (STCW) every five years in Southampton or South Shields. 7. The claimant attended annual wage negotiations in Aberdeen with representatives of the 1st respondent. 8. The claimant’s discharge book over the period from 2017-2020 show the following: Joined ship Left ship Peterhead 11 November 2020 Lerwick 1 0 December 2020 Killingoy 23 September 2020 Lerwick 14 October 2020 Lerwick 22 July 2020 Peterhead 18 August 2020 Peterhead 1 April 2020 Peterhead 29 April 2020 Great Yarmouth 27 May 2020 Peterhead 24 June 2020 Haugesund 5 February 2020 Haugesund 4 March 2020 Lerwick 10 December 2019 Olensvag 8 January 2020 Aberdeen 3 November 2019 Lerwick 13 November 2019 Peterhead 17 October 2019 Lerwick 26 October 2019 Peterhead 21 August 2019 Peterhead 17 September 2019 Bergen 27 June 2019 Peterhead 24 July 2019 Peterhead 30 April 2019 Peterhead 29 May 2019 Husoy 6 March 2019 Bergen 2 April 2019 Husoy 9 January 2019 Husoy 3 February 2019 Lerwick 14 November 2018 Husoy 12 December 201 8 Lerwick 20 September 2018 Lerwick 1 7 October 2018 Peterhead 24 July 2018 Aberdeen 21 August 2018 Lerwick 31 May 2018 Floro 27 June 2018 Aberdeen 4 April 2018 Peterhead 2 May 2018 Kolstoneset 7 February 2018 Bovagen 7 March 2018 Kolstoneset 15 December 201 7 Kolstoneset 10 January 2018 Liverpool 16 October 2017 Barrow 13 November 2017 Haugesund 23 August 2017 Peterhead 18 September 2017 Peterhead 29 June 2017 Haugesund 26 July 2017[13]I make one finding in fact in addition namely that the vessel Deep Vision is registered to the port of Aberdeen. This was unchallenged evidence. TUPE[14]I replicate here the Agreed Statement of Facts in relation to TUPE. 1 . The First Respondent is a company which provided crew to its retained clients who are principally in the oil and gas sector worldwide. 2. The vessel M.V. Deep Vision (“Deep Vision”) is a Subsea IMR and Survey vessel which performs IMR, survey and construction support work. 3. The Deep Vision at all material times is owned by Deep Ocean AS (“DMAS”). 2 Uk Limited (“DO2”) were the Operator of the Deep Vision prior to the beginning of January 2021. 4. Deep Ocean 2 UK Limited (“DO2”) is a pure 3rd party commercial management company. DO2 has no offshore or seagoing employees. DO2 facilitates crew management through 3rd party agencies. DO2 does not employ crew or provide crew for or to vessels. An organogram of the corporate nexus at the material time is enclosed at [DOC 12]. 5. The First Respondent at the material time was a company which provided crew to its retained clients who were principally in the oil and gas sector Worldwide. At the material time, the First Respondent employed approximately 15 employees worldwide and was a company registered in Guernsey. 6. In 2011 DMAS concluded a Company Administration Agreement with DO2 to provide management services for the Deep Vision. 7. Management of the Deep Vision was carried out by a bespoke management team employed or engaged by DO2. DO2 did not provide crew to the Deep Vision and was not expected to. DO2 was not obliged to manage the Deep Vision in a particular way. DMAS and DO2 understood that DO2 would contract with a or some crewing companies to provide any crew required for the Deep Vision. DO2 was advised by DMAS the particular crewing requirements in regards to the Deep Vision. DMAS determined the crew complement of 19 crew were required to safely operate and DO2 as operator of the vessel then managed the relationships as to what crew was required subject to DMAS specifying how many of each job role were required. 8. DO2 concluded personnel supply contracts with six independent, individually registered crewing companies to supply 46 crew. These companies were the First Respondent, Genesis Personnel, Clyde Marine, WRS, PSIL and Mecato Crewing (the “Crewing Companies”). All companies were engaged under separate contracts by DO2. 9. The First Respondent’s personnel supply contract was in the form of a “Crew Provision Agreement” [DOC 11, which is in identical form to that which was concluded at the time]. Decisions on the numbers, designations and which individuals would be supplied were made exclusively by the First Respondent subject to the requirements set out in paragraph 7 above. The First Respondent made the decision on which individuals would be supplied and was responsible for the decision-making process i.e. the mind, management and control per DOC 11 which is in identical form to the contract that was in place at the time. 10. Under the Crew Management Agreement and the Crew Provision Agreement, the First Respondent supplied 15 crew, including the Claimant. The Job Titles of the 15 crew were Able Bodied Seaman, 2nd Officer, Cook, Chief Engineer, Chief Mate, Crane Operator, Electrician, 2nd Mate, Master, 3rd Engineer. The 1 5 crew were principally assigned to the unit which carried out the contract between DO2 and the First Respondent. 11. The Claimant was employed as an Able Bodied Seaman by the First Respondent on or around the 28 June 2011, however as a result of previous TUPE transfers, the Claimant’s continuous service began on 1 April 1997. His most recent contract of employment is provided [Doc 5]. 12. During his entire employment with the First Respondent, the Claimant worked exclusively on the Deep Vision. The Claimant worked on a pattern of four weeks on the Deep Vision, followed by four weeks off. He was deployed in a group of 19 crew (“Marine Crew”) which comprised; Master, Chief Officer, 3 x 2nd Officers, Chief Engineer, 2nd Engineer and 3rd Engineer, Electrician, 2 x Able Bodied Seamen, 2 x Able Bodies Seamen/Crane Operators, Chief Cook, Night Cook, 4 x Steward [Doc 17, 18 & 19]. Not all of the 19 Marine Crew were employed and/or supplied by the First Respondent. The other Crewing Companies supplied crew as required, determined by the Crewing Companies based on availability, capability and skillset subject to the requirements noted at paragraph 7 above. 13. When the Claimant was on his 4 weeks leave, a 'back to back’ of 19 crew holding the same positions were deployed on the Deep Vision. The Claimant was always deployed with the same or substantially the same colleagues on his four-week rotations, although there could be minor changes due to absence for example. Neither the Claimant nor his colleagues were ever deployed onto vessels other than the Deep Vision, during employment with the First Respondent. The role of the Marine Crew was essentially to run and maintain the Deep Vision, in accordance with the requirements set out in the Crew Management and Crew Provision Agreement. 14. The First Respondent has confirmed that it been unable to provide any further crew listing beyond those supplied at Docs 17, 18 and 19. The First Respondent believes that the crew listings supplied are representative of the situation for the previous years of employment.[15]The First Respondent therefore employed 15 employees by spring 2020 all of whom were provided to DO2 pursuant to the contract between the First Respondent and DO2. The group of colleagues with whom the Claimant was deployed to the Deep Vision did not change as a consequence of the Respondent losing other crewing contracts. The Claimant was part of the Marine Crew whilst the Claimant understands that there were ‘Project Crew’ io on other vessels who were impacted by the redundancies.[16]The Fifth Respondent is a pure 3rd party commercial management company. The Fifth Respondent has no offshore or seagoing employees. Where the Fifth Respondent requires crew for a vessel it manages, it contracts with a 3rd party crewing company. The Fifth Respondent does not employ crew or provide crew for or to vessels.[17]On or around April 2020 the Fifth Respondent, along with several other vessel management services providers, was invited to tender for a contract 20 to “manage” the Deep Vision, by DMAS; that is, to carry out the “management” function that DO2 had hitherto carried put as described in paragraph 7. “Management” of the Deep Vision did not include a requirement to provide crew to the Deep Vision, or to crew it in a particular fashion or provide a particular number of crew.[18]The Fifth Respondent submitted a tender for “Management” of the Deep Vision in early September 2020. As it had been for DO2, the Fifth Respondent, and to the best of its knowledge all other tenderers, tendered on the basis that crew would be provided for the vessel by means of a further sub contract with one or more dedicated crewing companies.[19]In mid-September 2020, the Fifth Respondent was adjudged by DMAS to be the successful tenderer. Several phone calls took place to confirm this between Morten Sejrup (Managing Director of the Fifth Respondent) and Vigleik Olfernes Helen, (Group Ship Management Director at DMAS).[20]On or around the 16th September 2020, a standard BIMCO SHIPMAN 5 2009 contract (the “Contract”) for the management of vessels [DOC 15] was concluded between DMAS and the Fifth Respondent. The Contract clearly distinguishes between the following management responsibilities/services: a) Technical Management, io b) Crew Management, c) Insurance Management, d) Commercial Management. In relation to Crew Management, the Definitions section [DOC 15, p109] is states “Crew means the personnel of the numbers, rank and nationality specified in Annex “B”. However Annex B [DOC 15, p131] does not have any text inserted as it is a standard Bimco Annex which simply states the details that the manager of the relevant vessel is required to inform to the owners. The Annex is not completed at the point of signing the Contract.[21]For this tender, the Fifth Respondent had been asked to quote for Technical and Crew Management. “Crew Management” means finding a crewing company which employs suitable crew and engaging with that company to provide whatever is felt to be required by the Fifth Respondent. The Fifth Respondent has a long-standing contractual relationship with the Second Respondent and, when structuring its tender, intended to “call off’ against that contract to provide crew.[22]The management of the Deep Vision pursuant to the Contract was stated to commence on the 4th January 2021. The contract for “Management” of the Deep Vision was limited to the functions previously carried out by the “Management” unit within DO2 and this was what was understood by DMAS, offering the Contract, and the Fifth Respondent upon signing. The understanding of the Fifth Respondent and, according to the Fifth Respondent’s best recollection which is neither confirmed nor denied by the Claimant, DMAS, was that the Fifth Respondent would commence management with a completely blank slate in terms of structure and technicality of management and could fulfil the Contract in the best way it saw fit including in relation to numbers, types and variability of personnel.[23]The Fifth Respondent was advised that DO2 did not have any employees principally assigned to the management of the Deep Vision and therefore there would be no employees of DO2 subject to TUPE. The Fifth Respondent was advised that there would be no employees of any company who would be subject to a TUPE transfer in relation to this tender, in particular as DO2 contracted out all crewing to several crewing companies. The Fifth Respondent requested that DMAS and any previous companies involved in the tender take legal advice on this point and the appropriate continuation of the process. The Fifth Respondent cannot say whether this occurred but notes that DMAS confirmed to the Fifth Respondent that their understanding was that there would be no TUPE transfer from any company, whether DO2, any of the crewing companies or any other company, after this request.[24]On or around 14th October 2020, DMAS wrote to DO2 stating that the management contract had been awarded to the Fifth Respondent. Accordingly with effect from 5th January 2021, DO2 would cease to manage the Deep Vision.[25]On or around 14th October 2020, DO2 wrote to the Crewing Companies (letter to First Respondent, which is in identical form to all sent, is enclosed as DOC X) stating that, with effect from 5th January 2021 the Crewing Companies would no longer be required to provide crew to the Deep Vision under the contract between DO2 and the relevant Crewing Companies and the crewing contracts would be terminated.[26]On the 14th October 2020, the First Respondent notified all 15 of its employees that due to the loss of the contract to provide crew to DO2, they were at risk of redundancy from 5 January 2021 (copy of standard at-risk letter, which was used after the loss of all previous such contracts, is submitted at DOC 14).[27]The Second Respondent is a company which provides crew to its retained clients who are principally in the oil and gas sector Worldwide. The Second Respondent employs approximately 10,000 employees worldwide and is a company registered in Cyprus.[28]When submitting the tender, the 5th Respondent had, in pricing the tender, considered which crewing company or companies could be engaged to supply crew to the Fifth Respondent to fulfil the contract on the Deep Vision. The 5th Respondent decided that fulfilment of the Contract required the Deep Vision to be crewed by around 40 seafarers as well as a number of further trainee positions (the “Seafarers”). It was decided that the supply would be done by one crewing company which was already supplying crew to the rest of the fleet.[29]Morten Sejrup noted that the Fifth Respondent and the Second Respondent had had a contractual relationship for the supply of crew for many years. The contract had been recently renegotiated and concluded in a BIMCO Crewman A standard contract (the “Seafarers Contract”) [DOC 16]. By October 2020, the Second Respondent was supplying crew to approximately 15 vessels being managed by the Fifth Respondent.[30]On or around 16th October 2020, the Fifth Respondent’s Morten Sejrup contacted the Second Respondent and requested that the Second Respondent confirm whether or not it would be able to supply the Seafarers with effect from 5th January 2021.[31]The Second Respondent reviewed its current employees and noted that it required to recruit to satisfy its various contracts. A recruitment process was commenced. As part of this exercise, the Second Respondent requested that the Fifth Respondent notify DMAS that the Second Respondent was recruiting.[32]Over the following months several applications, including from the Claimant, were received by the Second Respondent from employees of the Crewing Companies. The Second Respondent filled the vacant positions according to its usual recruitment processes. Of the applications received from employees of the Crewing Companies, some were successful but others were not. The Claimant’s application was not successful. Around 12 employees from the Crewing Companies secured employment with the Second Respondent and have been provided to the Deep Vision, as well as other vessels being supplied by the Second Respondent.[33]The Claimant’s last four week rotation ended on 10 December 2020 [DOC 17]. The Claimant confirms that on this date, his ‘back to back’ crew were deployed onto the Deep Vision for their four week rotation which ended in January 2021.[34]On the 4th January 2021, the Fifth Respondent commenced managing the Deep Vision pursuant to the Contract.[35]For the avoidance of doubt, DMAS would not have, and does not have any input into who and which positions will be deployed on the vessel from January 2021 onwards when the contract was awarded to the Fifth Respondent. At no stage, whether during the tender or since the Fifth Respondent was successful, is there any question of DMAS having input into who and which positions will be deployed on the Deep Vision.[36]On the 4th January 2021, the Second Respondent began supplying the Seafarers pursuant to the Seafarers Contract. From the 4th January 2021 the Second Respondent supplied around 40 Seafarers to the vessel. The Second Respondent supplies these pursuant to the Seafarers Contract but generally runs it on a four week on, four week off rota. Each four week trip sees the Second Respondent supplying, around 19 crew.[37]The Seafarers supplied sign employment contracts for either 1 four-week shift, 6 months or 12 months.[38]The Seafarers job titles supplied are set out in [DOC 20, 21] and include io Master, Chief Officer, 2nd Officer, Able Body Seaman, Able Body Seaman/Crane Operator, Chief Engineer, 2nd Engineer, 3rd Engineer, Electrician, Chief Cook, Night Cook, Steward/Stewardess, Trainee Deck. At any time a particular Seafarer may be deployed on another of the Second Respondent’s contract vessels. Additional Findings in Fact 1 5. The claimant was employed by R1, as an Able Bodied Seaman from 28 June 2011 until his dismissal on 11 January 2021 (with continuous service from 1 20 April 1997 due to a previous TUPE transfer). He worked exclusively on the Deep Vision. He worked as part of a group of 1 9 marine crew working on back to back rotas who were similarly employed exclusively on the Deep Vision and supplied by R1 to DO2 who manged th vessel on behalf of the owners.16. Following termination of RTs crewing contract the new managers of the vessel, R5, instructed a new crewing company (R2) to recruit crew for the vessel. Twelve of the crew previously supplied by R1 were engaged but the claimant was not. Neither R1, R2 or R5 recognised that a TUPE transfer had occurred relating to the crew supplied by R1 prior to the 5 January 2021. Witnesses17. I found Mr Hutcheon to be a wholly credible and reliable witness. His evidence was not challenged. Submissions Claimant’s Submissions18. Mr Deans referred to the Joint Statement of Facts and attached documents. He took the Tribunal though the various elements that, in his submission, showed a strong connection with the UK and UK law. The claimant lived in the UK and was paid wages subject to deductions for UK tax and national insurance. He was provided with a P60 and latterly with a P45. On termination of his employment he was paid a redundancy payment. The flag state of the vessel was the UK. He left the UK on tours of duty. He was an Able Seaman. His joined and left the vessel mostly from UK ports. Not only did the claimant have a substantial connection with the UK ( Lawson v Serco (2006) ICR 250) but the Tribunal had jurisdiction because mariners were protected by the Merchant Shipping Act.19. He turned to TUPE referring the Tribunal to the submissions which were made by way of e-mail on 31 January 2022 at 17:00.20. There was a TUPE transfer on 4 January 2021 when R5 took over the management of the Deep Vision and R2 began providing crew to the Deep Vision. Accordingly, the claimant’s employment transferred on that date to the second respondent.21. Throughout his employment with R1, as an Able Bodied Seaman from 28 June 2011 until his dismissal on 11 January 2021 (with continuous service from 1 April 1997 due to a previous TUPE transfer) the claimant worked exclusively on the vessel Deep Vision. He worked as part of a group of 19 marine crew who were similarly employed exclusively on the Deep Vision.22. The claimant’s solicitor submitted, with reference to Reg.3(1) that there was either a “business transfer” ( “standard” transfer” or a “service provision change” or “SPC”). He took the Tribunal through the important factors. Business transfer23. Mr Deans submitted that it was not in dispute that on 4 January 2021 the first respondent ceased to have responsibility for supplying marine crew to the Deep Vision and this responsibility transferred to R5. Mr Deans made reference to the cases of Spijkers v. Gebroeders Benedik Abattoir [1986] 2CMLR296 and Cheesman v. R Brewer Contracts Ltd [2001] IRLR 144. He referred in particular to the “multi-factorial approach” set out in Cheesman. He submitted that the entity in question retained it’s identity after 4 January 2021. It did so because of the crewing situation pre and post the contested transfer showed that it had. Post transfer a significant percentage of the crew remained employed on the same vessel doing the same work namely crewing the vessel. Contractual documentation 24. The claimant’s solicitor submitted that DMAS was the owner of the Deep Vision at all material times. However, the contractual documentation which had been produced failed to give clarity or sufficient detail about the crewing arrangements. His position was that the Tribunal was entitled to draw conclusions both from the documentation lodged and Mr Hutcheson’s evidence. 25. It was submitted there must have been a conscious choice made by DO2 to deploy the same or substantially the same grouping of employees on each deployment and that this constituted an organised grouping of employees which were specifically and permanently assigned to the common task of providing manpower to the Deep Vision. As such, this grouping amounted to an economic entity. In support of his submissions in this regard the claimant’s solicitor referred to, ECM (Vehicle Delivery Services) Ltd v. Cox [1999] IRLR 559. 26. Finally, in this regard the claimant’s solicitor submitted that the R2 had confirmed that it employed 1 2 staff from January 2021 onwards who previously worked as Marine Crew on the Deep Vision (SAF, paragraph 32). The fact that the R2 did not employ the entire Marine Crew who previously manned the Deep Vision prior to January 2021 does not preclude the existence of a relevant transfer. To hold that this were so, would be to permit a transferee to evade their responsibilities by simply refusing to take on any or the majority of the organised grouping upon transfer. Service provision change 27. It was submitted that a service provision change has a wider meaning than the “transfer of an economic entity” and may include the transfer of an activity alone”. The transfer falls under Regulation 3(1)(b)(ii), specifically that the activity of providing Marine Crew to run and maintain the Deep Vision ceased to be carried out by a contractor (DO2) on behalf of the client (DMAS) and instead is carried out by another person (R5) on behalf of the client (DMAS) albeit the employer of those individuals is the R2. DMAS as client 28. As owner of the Deep Vision was the ultimate “client” and remained so post transfer , “and the activity carried out was the provision of Marine Crew to run and maintain the vessel. The pre-transfer, these activities were carried out by DO2 who managed the vessel and obtained the crew from the Crewing Companies’3. Post-transfer, DMAS remains the client, with the fifth respondent managing the vessel (SAF paragraphs 18-20/’. Organised grouping 29. In support of his submissions in this regard, the claimant’s solicitor referred to: Rynda (UK) Ltd v. Rhijnsburger [2015] IRLR 394. He submitted that there was such an “organised grouping” the claimant and his colleagues “were dedicated to working on the Deep Vision. . . . ..DO2 organised the crew such that there was an identifiable grouping of Marine Crew whose principle purpose was the carrying out of the activities on behalf of DMAS.” Immediately before the service provision changed 30. It was submitted that before and after 4 January 2021, “there was no change to the service being provided and no break or suspension of activities." Fundamentally the same 31. It was submitted that the activities being carried out by DO2 and thereafter R5 fundamentaliy the same as R5 has arranged employees into an organised grouping of 19 Marine Crew whose principle purpose is carrying out the activities concerned, i.e. the running and maintaining of the Deep Vision, on behalf of DMAS. The evidence produced indicated that R5 did arrange the 19 Marine Crew in such a manner that they constitute an organised grouping. 32. With reference to Churchill Dulwich Ltd (In Liquidation) v. Metropolitan Resources Ltd [2009] IRLR he submitted that minor differences in the way the service is delivered does not mean the activities are fundamentally changed. Conclusion 33. In conclusion, the claimant position was that a TUPE transfer occurred, either by way of a transfer of a business or undertaking in accordance with Regulation 3(1)(a), and/or that a service provision change occurred in accordance with section 3(1)(b). The entire Marine Crew grouping of 19 crew constitute the economic entity and/or organised grouping which should have transferred. Esto, it is the claimant’s contention that the 1 5 employees who were employed by the first respondent and who were principally assigned to the Deep Vision should have transferred to the second respondent. First respondent’s submissions 30 The first respondent’s representative had lodged written submissions by way of an attachment to her e-mail of 25 February 2022. The first respondent agreed with the “factual background” which was set out in paras. 1-6 of the claimant's submissions. 34. It was submitted that TUPE did not apply when the first respondent lost its contract with the vessel operator, DO2. “The purpose of that contract was to supply labour to the vessel Deep Vision.” R1 agreed with the submissions made on behalf of R2 and R5. (paragraphs 18 and 21) that no transfer of an economic entity between the first respondent and the second and fifth respondents. “The contract for managing Deep Vision belonged to DO2 prior to the R5 being awarded the contract. R1 was simply contracted by DO2 to supply labour and was one of 6 companies contracted to do this on behalf of DO2.” 35. The first respondent’s solicitor also agreed with the submissions on behalf R2 and R5 that there was “no service provision change” writing: “Whilst R1 agrees with the claimant’s submission that the activities carried on by the crew of Deep Vision were fundamentally the same when the crew were provided by R1 (and others) or by R2, R1 agrees with R2 & R5’s submission (paragraphs 24-27) that there was no organised grouping of employees. Only 15 members of the crew of Deep Ocean were provided by R1, out of a total of 46 crew members as to whether there was a service provision changed between R1 and R2 or R5, R1 agrees with R2 and R5’s submissions (paragraph 28): if there was a service provision change at (which R1 disputes) this would have been between DO2 and R57 The Second and Fifth Respondent’s Submissions 36. The solicitor for the second and fifth respondents made submissions by way of an attachment to his e-mail of 31 January 2022. These adopted by Mr Hay who supplemented them. 37. Mr Hay, Counsel for R2 and 5 took the primary position was that on the agreed facts the claimant had not established a relevant transfer nor had Mr Hutcheon’s evidence added significantly to them. He then took the Tribunal through the pleaded case. The claimant “believed that on or around the 4 January 2021, a TUPE transfer occurred....” and that the responsibility for supplying labour was transferred to either R2,R3,R4 or R5. The claimant at no stage defines the organised grouping (whether of resources for an economic entity, or of employees) upon which he relied. 38. Turning to the factual background he explained that there was a complex structured arrangement whereby the owners (a company called DMAS) of the ‘Deep Vision’ had a contract with another company (called DO2) to be the Operator of the vessel ( JSAF [3]&[4]). DO2 employed no offshore or seafaring employees (JSAF [4]). Crewing of the vessel was provided from a number of other companies who each contracted with DO2. R1 was one of 6 such companies. DO2 had contracts with companies other than R1 to provide crew for vessels other the ‘Deep Vision’ (JSAF [8]). The vessel’s owner DMAS determined the requisite crewing complement for ‘Deep Vision', which then informed the contracts that DO2 then entered into (JSAF [7]). 4
Conclusion
[39]DO2 contracted with R1 and 5 other companies in the form of a Crew Provision Agreement in standard terms produced at Document 11 (JB pp96-101). 15 crew were provided by R1 to DMAS, out of a total engagement of 46 crew across the 6 provider companies. (JSAF [8] & [10]). R5 was a third party commercial management company which does not employ any offshore or seafaring employees or otherwise employ crew for vessels it manages ( JSAF [16]). The contract to manage the vessel hitherto undertaken by DO2 came out to tender in April 2020. R5 was one of several other tenderers. As before, that tender did not require the successful contractor to employ crew for ‘Deep Vision’. R5 won the tender in mid-September 2020. (JSAF[17]-[19]) 36. DMAS contracted with R5 on the basis of a. standard following them winning the tender [JB pp107-131]. That contract included provision of ‘crew management’ (see clause 7 at [JB p107]), which term meant engaging one or more crewing companies for the purposes of providing the crew required by the owner of the vessel (see JSAF [21]). R5 took over management of ‘Deep Vision’ from DO2 with effect on 5 January 2021. R5 was advised that DO2 had no employees principally assigned to the management contract that would be in scope to transfer. A similar representation was made by DMAS to R5. (see JSAF [23]). DO2 were advised that their engagement with DMAS on the management contract of ‘Deep Vision’ would end on 5 January 2021 on around 14 October 2020 (see JSAF [24]). DO2 thereafter gave notice on or around 14 October 2020 to R1 and the five other companies engaged to provide crewing for Deep Vision to advise that those contracts would be terminated on around 4 January 2021. (JSAF [25]) The claimant was advised by R1 on 14 October 2020, along with the 14 other employees, that he was at risk of redundancy. Meantime R5 contacted R2 to arrange for crewing and R2 started a recruitment exercise. Staff were recruited in R2’s normal manner after competitive recruitment. The claimant applied but was unsuccessful. It is submitted that this was not the claimant “reapplying for his own job”. The claimant applied for a post with R2 and was unsuccessful. R2 commenced supplying crew to R5 for ‘Deep Vision’ on 4 January 2021. (JSAF [36])[40]Mr Hay submitted that no economic entity transferred nor was there a service provision change. He referred to Regulation 3(1),3(2) and 3(3). His position was that there was no economic entity. To exist it must be stable, sufficiently structured and autonomous. An activity is not of itself an economic entity. (Cheeseman v R Brewer Contracts Ltd [2001] IRLR 144)[41]The concept of an economic entity was he said derived from the Acquired Rights Directive (2001/23/EC). The provisions of the Directive do not apply where the object of the transfer consists exclusively of one or more seagoing vessels, but do apply to a seagoing vessel that is part of a transfer of an undertaking, business or part of an undertaking or business within the meaning of Article1.1 and1.2 provided that the transferee is situated, or the transferred undertaking, business or part of an undertaking or business remains, within the territorial scope of the Treaty, (see Article1.3 Acquired Rights Directive 2001/23/EC). in construing the predecessor legislation, the Inner House of the Court of Session considered that this exclusion would not bite in a situation where a whole business, owning one or more ships, was bought or otherwise transferred, but that it would where a business simply sold one vessel (see Howes v Castle View Services Ltd 2000 SC 419 per Lord Sutherland at 423). The revised formulation of the exclusion contained in Article1.3 of the Acquired Rights Directive is not concerned solely with sale of vessels, its language being rather the ‘object of the transfer’, which is submitted to be a broader concept.[42]In this case, he submitted that the claimant’s claim must depend upon identifying an economic entity solely concerned with the provision of crew to a seagoing vessel ‘Deep Vision’. There is no suggestion that the economic entity (whatever it is - it is entirely undefined and unspecified by the claimant in his pleadings) is or could be concerned with any form of business broader than that of the crewing of ‘Deep Vision’. If that submission is correct, then on any view, the object of transfer consists exclusively of crew to ‘one or more seagoing vessels’ and falls squarely within the exclusion. There can be no transfer of such an entity and the claim based on Regulation 3(1)(a) TUPE as interpreted by the Acquired Rights Directive therefore falls.[43]The premise of the claimant’s case was that there was a transfer of an entity between R1 and one of the remaining two Respondents, either R5 or R2. The position is however clear that, on the most favourable construction to the claimant, what transferred was an entity from the previous crew management company, DO2, to the new crew management company, R5. (In any event it is highly unlikely that the facts as narrated above disclose a transfer of an economic entity between DO2 to R5). The claimant has failed to establish on the facts of this case that any transfer occurred, employer, and R2 or R5. No broader interpretation is required by EU law.[44]Addressing whether there had been a service change Counsel accepted that the background was more consistent with the features of a service provision case. But for the claimant to establish that a relevant transfer has taken place he must show not just that there was a service provision change as defined in Regulation 1(b) TUPE, but also that there was immediately before the service provision change an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client (and separately, that the claimant was assigned to that grouping in order to benefit from the provisions on transfer). The claimant does not attempt to define the particular service provision change said to have occurred, and between whom, and further has made no steps to define the relevant ‘organised grouping’ to which he was assigned.[45]The first matter that must be demonstrated is that the activities carried out by the transferee and the transferor are ‘fundamentally the same’ (Regulation 3B TUPE). This is a question of fact and degree (Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] ICR 1380). More fundamentally, there must be established an ‘organised grouping1 of employees. It has been emphasised that this is more than a mere grouping, it must be organised for a particular and principal purpose of providing the activities said to be the subject of transfer (Amaryllis v McLeod (9 June 2016) UKEAT/0273/15). This is a matter of fact and must be more than merely circumstantial (Eddie Stobart Ltd v Moreman [2012] ICR 919). It is therefore necessary for the tribunal to focus on the specific factual arrangements of the particular business said to be transferor. In addition, it is not legitimate for a single claimant to attempt to carve out himself as a grouping without engaging in the broader picture (Ceva Freight (UK) Ltd Seawell Ltd 2013 SC 596 at para [33]).[46]The authorities made it clear, he suggested, that the question of whether a relevant transfer is established by reference to a service provision change entails a detailed assessment of the factual matrix of the particular case. It is not enough for a claimant simply to assert his own position in employment to establish that whatever else might be going on, he was certainly part of an organised grouping. The whole grouping must be defined. Thereafter it must be shown that there was a relevant transfer, and that the claimant was assigned to that grouping immediately before the transfer. The position of R2 and R5 is simply stated on this point. On the evidence, and in particular having been provided with no specification of what the claimant says the organised grouping amounted to, and what it did, the tribunal cannot find that such a grouping was in existence within R1. It is not sufficient, he submitted , to simply point to a small number of crew lists prepared by R1 (Document 17 [JB pp152-153]) R2 (Documents 20 and 21 [JB ppi 67-171]), and notes prepared by the claimant thereof (Document 22 [JB pp172-175]) to determine that a grouping has been established on the facts before the tribunal. The meaning of the Crew Lists, particularly from R1, are unclear and not, it is submitted, informative for this exercise. How is the tribunal, for example, to be able to make factual determinations as to how the work was organised by R1, and in particular in respect of whom? For this reason alone, it is submitted the claim must fail in that no organised grouping can be defined from the agreed facts and the documentary evidence before the tribunal.[47]The claim depends upon asserting a service provision change between R1 and one of the two remaining respondents. The contractual services that were changed did not involve R1 at all, but was a service provision change as between DO2 and R5. Those were io for essentially management services of the vessel. Any organised grouping therefore would require to be of employees of DO2 employed for the principal purpose of carrying out the activities of management services of the vessel. It is a matter of agreement that no such employees were employed by DO2 or R5. This is significant because the transfer provisions in Regulation 4 TUPE only apply to employees of the transferor, which in this case is submitted to be DO2, assigned to the organised grouping of resources or employees. The reality of the situation is that, in essence, the claimant was being employed by a third party company and provided to DO2 for the purposes of discharging DO2’s contractual obligations vis-a-vis ‘Deep Vision’. The claimant can point to no relevant transfer as between his employer, R1 and either R2 or R5. The claim must fail for this reason also.[48]Finally, the claimant has provided no evidence beyond the facts of his own duties and engagement with R1 on ‘Deep Vision’ to establish that he was assigned to a transferring organised grouping. To do so without defining the organised grouping said to have transferred is to make, it is submitted, the same error as was made in Ceva, A tribunal cannot and should not attempt to reverse engineer a transfer scenario from the evidence of the duties and work of the claimant alone. The weight of the evidence and agreed facts supports the conclusion that any service provision transfer that took place was between DO2 and R5, and that that transfer did not entail a transfer of any organised grouping of employees at all. There was not, and could not have been, any service provision transfer between R1 and any other company, let alone R2 or R5.[49]Initially the respondents had suggested that the claimant had not defined an organised grouping and in Mr Hay’s submission the evidence of Mr Hutcheson had not assisted in identifying a grouping. A certain number, not ah, of the crew were supplied by the crewing company. This was not an organised grouping.[50]It was the vessel’s owner DMAS which determined the crewing for the Deep Vision, “which then formed the contracts that DO2 then entered intd\ DO2, like the fifth respondent is a “third party commercial management company which does not employ any offshore or seafaring employees or otherwise employ crew for vessels it manages.” The fifth respondent won the tender to manage the vessel. The fifth respondent was advised by DO2 and DMAS that “DO2 had no employees principally assigned to the management contract that would be in scope to transfer”.[51]R5 had an existing relationship in respect of providing staff for other contracts with the second respondent, staff were recruited in R2’s normal manner after competitive recruitment. The claimant applied but was unsuccessful. It was not the claimant ‘reapplying for his own job.lt was submitted that TUPE can only apply, where it can be shown from the factual matrix that either an economic entity transferred which retained its identity or there was a service provision change (Reg. 3(1)). An ‘economic entity’ is defined in Reg.3(2) as being: “an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is centra! or ancillary”. Discussion and Decision Jurisdiction[52]The starting point in relation to jurisdiction in this case is whether the claimant can avail himself of the Tribunal’s jurisdiction as a Mariner. The right to claim for unfair dismissal in that context is contained in Part 10 of the Employment Rights Act 1996.[53]The right to claim unfair dismissal has been excluded from those who, under their contract of employment, ordinarily work outside Great Britain. There has always been a provision which specifically identifies how that test should be applied with respect to persons employed to work on board a ship registered in the UK. There is also a range of specific provisions dealing expressly with the position of persons working on board ships. Merchant seamen as a group, and it is not challenged that the claimant is one, have also been excluded from the scope of certain other statutory rights. Before 1999 the relevant legislation was as follows. Section 196, which is headed Employment Outside Great Britain, provided In subsection (2) that: "The provisions to which this subsection applies do not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain." Those provisions included the rights under Part 10.The application of that test does not apply, with respect, to those employed on board a ship registered in the UK by subsection (5), which was as follows: "For the purposes of subsections (2) and (4), a person employed to work on board a ship registered in the United Kingdom shall be regarded as a person who under his contract ordinarily works in Great Britain unless -(a) the ship is registered at a port outside Great Britain,(b) the employment is wholly outside Great Britain, or(c) the person is not ordinarily resident in Great Britain."[54]Section 199 is headed "Mariners" and disapplies to varying extents particular rights from specific categories of seamen. Subsections (4) and (5) then deal expressly with the position of merchant seamen. That legislation was altered by Section 32 of the Employment Relations Act 1999. It repealed both Section 196(2) and subsection (5). However, the substance of the latter provision was maintained by adding two subsections to Section 199. These are now subsections 199(7) and (8) respectively. Section 199(7) is as follows: "The provisions mentioned in subsection (8) apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if -(a) the ship's entry in the register specifies a port in Great Britain as the port to which the vessel is to be treated as belonging.(b) under his contract of employment the person employed does not work wholly outside Great Britain, and(c) the person employed is ordinarily resident in Great Britain.”[55]Subsection 8 identifies the relevant provisions and they include the right to claim for unfair dismissal under Part 10. The reference to the register maintained under Section 8 of the Merchant Shipping Act is to a register of ships in the United Kingdom. It is to be noted that jurisdiction can only be exercised, however, where the entry in the ship's register specifies a port in Great Britain.[56]The claimant worked mostly in UK waters aboard a vessel registered (‘flagged5) in the UK. It as not completely clear from either the Agreed facts or the documents lodged whether the ship was registered as having its home post in Aberdeen Copy entries in the Record of Sea Service produced by the claimant seem to confirm that the vessel worked out of the port of Aberdeen. The matter was clarified in the claimant’s evidence when he said that the vessel was registered in Aberdeen.[57]Even if the claimant had not been able to found jurisdiction on the basis of Section 199 I would have found that the Tribunal has jurisdiction when applying the “substantial connection’’ test as outlined in Lawson v Serco [2006] ICR 250. The claimant fits within the category of being a “peripatetic employee.”[58]In Ravat v Halliburton [2012] ICR 389. At paragraph 27 Lord Hope stated the following: “Those factors [whether the relationship was “rooted and forged in Great Britain will never be unimportant, but I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule.” And later at paragraph 29: “The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”[59]It is not a question of simpiy listing the factors which suggest a connection with the UK but considering the quality of those connections in order to ascertain whether the relationship between the two is sufficiently strong. The factors or elements in that relationship demonstrated here point to a strong connection with the UK. The vessel is ‘flagged” here and generally works from the UK namely from Aberdeen. The claimant, was given a P60 and P45. He did training in the UK. The case of Olsen v Gearbulk Services Ltd UKEAT/0345/14 is also helpful. The Tribunal should consider the tax position particularly national insurance and in the present case the claimant is paid subject to UK income tax and national insurance. TUPE[60]We are concerned here with the possible application either of a “standard” transfer under Regulation 3(1)(a) or a Service Provision Change (SPC) transfer under Regulation 3(3) of the 2006 Regulations. These Regulations were brought into force because of uncertainty as to the proper application of 3(1)(a) to outsourcing and retendering situations which have become commonplace. There is an overlap between the two Regulations and it has been observed that a standard transfer often covers what can be regarded as a SPC transfer as earlier authorities show. In the present case although accepting that an SPC might appear to fit more closely with the facts the claimant argues for a transfer on both grounds. Standard Transfer[61]Regulation 3(1)(a) requires the Tribunal to consider four questions namely: Was there a transfer to “another person”? 5• « Did an economic entity transfer? * Did the entity retain it’s identity after the transfer and• Was that entity situated immediately before the transfer in the UK. io 62. As a preliminary observation the vessel here, the M.V. Deep Vision, did not change ownership. The focus is, therefore, on the operators using that asset who needed labour to crew the ship for the purposes of their business. The fact that there was no change in ownership of the vessel is not a bar to the application of the Regulations. Trie purpose of the Directive and Regulations is to protect worker’s rights when there is a change of employer. There is also no requirement for there to be a contractual relationship between the transferor and transferee. I agree with Mr Hay that the focus should be on the contract for the provision of crew and whether that can amount to an economic entity.[63]The solicitors acting for R2 and R5 raised in effect a preliminary objection 20 namely that the Regulations do not apply as a ship does not itself amount to an economic entity under the Directive. The Court of Session in Castle View Services Ltd v Howe and Others (2000) SLT 696 held that the then iteration of the Regulations did not automatically exclude the protection given by TUPE to workers. It drew a distinction between the situation where a company owning two ships sold one to another company to use at they saw fit as opposed to a situation where for example where both ships were sold together as a business. I agree with Mr Dean’s submission that the exclusion does not apply here on the facts as whatever else occurred it did not involve the sale of the ship, the Deep Vision but a change to how it was operated as part of a business[64]The multiplicity of situations that occur and the complexity of the ensuing judicial decisions in relation to TUPE transfers do not always provide clear guidance but the so called Cheeseman Guidance (following the case of Cheeseman ) indicates that the first question to address is whether or not there was a relevant and sufficiently identifiable economic entity which could be transferred. Both sides also referred to the Court of Appeal case of ECM (Vehicle Delivery Service) Ltd v Cox a case in which the loss of a contract for the delivery of cars to VAG by Axial was held to be a ‘standard’ TUPE transfer despite the lack of assets transferring and the changes made in the way the contract was to be delivered. The ratio of the case was that the Tribunal was entitled to look at the whole circumstances and examine all the facts characterising the transaction. In that case ECM did not take on any of the staff belonging to Axial.[65]The mechanism of any transfer must lie in what happened to the original contract to supply crew. This was cancelled. If as in the ECM case the employer supplied services direct to the client it could be analysed as the cancellation of that contract meant that the work was brought inhouse, along with Axial’s staff, and then transferred out to ECM when VAG awarded the contract elsewhere. In this case there R2 was apparently told that TUPE would not apply but nevertheless seem to have interviewed the existing R2 crew giving most of them (12) jobs but not the claimant. When DO2 were replaced there could have been a transfer of their staff to R5 or the owners. I therefore struggle to understand why R1 staff assigned to the same vessel/activity could not be regarded as have been transferred by the operation of the Regulations providing they satisfied the other requirements in what intellectually might be seen as a series of steps.[66]The definition of economic entity is defined in Regulation 3(2) as being “an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is central or ancillary”[67]Before going further I reminded myself of what the evidence disclosed as being the broad background situation. The owners of the ship, the Deep Vision, employed a management company to operate or “run” the ship. This included crewing it at certain agree levels. This company did so by contacting ship crewing companies including R1 and contracting with them to provide the crew on what appears, so far as R1 is concerned, to have been a continuing and long term basis. This company provided most , but not all, of the crew including the claimant. He worked on the Deep Vision along with colleagues from the same company for many years on back to back shifts.[68]The management company that contracted with R1 lost the contract and another management company (R5) hired new crew from R2. This meant that R1 lost their contract for the supply of the crew. This was a situation where an asset (the vessel) and equipment on board needed a qualified labour force to operate it and together to form the business. My understanding is that the Deep Vision was principally a supply vessel but has marine surveying capabilities as the name suggests. We are not considering here the transfer of the business owned by DO2 but an important aspect of the way that business was run. This is also not a situation where, say a manager, working on the contract for the crewing company on the DO2 contract asserts that he should have been transferred to the new crewing company.[69]As we have seen the Directive can apply to outsourcing in a “standard” case where for example the owner of a busmess contracts with another to provide a service to the business such as providing staff for example in the case of Rask and Ano v ISS Kantinenservice A/S 1993 IRLR 133. The situation in that case related to catering services in a business. A new catering company took over the contract and the existing staff. The business in question retained its identity indicated by the fact that its operation was either continued or resumed. The fact that the activity transferred was ancillary to the business of the transferee as a whole and the fact that the services that were provided were provided exclusively for the benefit of the transferee did not prevent the Directive from applying. There can in effect be a relevant transfer between two contractors.[70]The apparent difficulty for the claimant in this case is identifying what economic entity transferred to engage Regulation 3(1) (a). The definition is that of an organised grouping of resources which has the objective of pursuing an economic activity, whether or not the activity is central or ancillary. An economic entity must be structured and autonomous (Cheeseman). The group of employees to whom the claimant belonged was that part of the crew supplied by R1 to the Deep Vision and for no other purpose. 71. if the entire crew of a vessel or perhaps a defined component of that crew (e.g Able Seamen or Engineering staff and so forth) were provided by a single source it might be easier to understand that there was an organised grouping which undertook an economic activity. The economic activity being running/crewing the vessel as its most basic.[72]The definition is a wide one as can be seen by the fact it can encompass a sole employee. The fact that there were a number of providers of crew with the largest (by number) provided by R1 does not assist in constructing an entity that fits this definition but surely TUPE cannot be avoided by splitting up the workforce.[73]The question of whether the entity retained it’s identity is also not a particularly easy concept to understand or apply in this context. If none of the crew, ,however sourced, had been taken on then they would have dispersed to different jobs but the activity of crewing the ship would have continued. The situation here was that a large group of the “old” crew were taken on. The reality was that the majority of the crew were sourced from R1 and were in long term and stable work although the contract with DO2 could be cancelled. The crewing contract concerns the provision of labour only and the fact that a significant number of the crew were taken over and continued in their work as crew suggests a retention of identity.[74]It could be possible for the “majority” crewing contract, for the want of a better description, to be capable of being regarded as an economic entity that retained it’s identity in some circumstances where the old and new service ( the provision of the bulk of the crew) remained essentially the same, it does not seem so clear cut in this case. Here the most that can be said is that it was the majority of the crew. That majority have no clear description referring to their roles. The contract was not for example the provision of all the catering crew, or all the engineers. There were crew hired from other sources. Considering the matters in the round I concluded, although with some hesitation, that there was insufficient to convince me that an economic entity had transferred.[75]It is not clear exactly what the vessel was doing prior to the transfer but I think we can assume it was working with the claimant’s back to back crew on board. There also appears to have been no interruption in activities and the claimant, was employed at the time of any transfer in UK waters.[76]The date of any transfer was not agreed. The claimant believed the 4 January was the date of the transfer and the respondents have suggested the 5 January being the date R5 took control as the management company. They had previously arranged for R2 to supply crew from the 4 January as DO2 had their contract terminated. I do not believe the difference is significant. The arrangements were perhaps put in place before R5 formally took over but the practical date for any transfer would be the 4 January. Service Provision[77]The claimant in the alternative contends that if this was not a “standard” transfer then it was covered by Regulation 1(b). Mr Hay accepted that the situation here was more consistent with a service provision change but argued that immediately before any change there must be an organised grouping of employees. The activities must be fundamentally the same. I do not regard this as an insuperable difficulty here as the activities can be described as crewing the vessel with the mixture of roles and skills needed to operate it. This group of employees could be described as RTs crew as both the roles had been filled and mostly the same staff employed on the Deep Vision for many years.[78]The main line of attack taken by the respondent’s was that the claimant could not establish an ‘organised grouping’. That is an grouping organised for a particular purpose. There was some criticism of the claimant for being unable to provide a detailed enough assessment of the factual matrix. The Tribunal is conscious that the claimant was not privy to the detail of the contractual 25 arrangements made here but the broad picture of how the contract operated and came to an end appears to be relatively straightforward.[79]It should be borne in mind that the definition does not say “all” the activities. The broad definition given by the EAT in Seawell EAT was that “organised grouping of employees” suggests a deliberate putting together of a group of employees for the purpose of the relevant client work. It is not a matter of “happenstance”. The only deliberately organised grouping in that case was that of ‘Inbound” and “outbound” staff , and the outbound grouping did not have as its principal purpose the carrying out of activities on behalf of Seawell[80]It cannot be said that R1 having put together the bulk of the crew in back to back rotation over many years had fallen into this situation by “happenstance”. It also required the employer, the first management company DO2, to accept the situation and be satisfied with it long term. It was no doubt convenient that the bulk of the crew was sourced in this way. Although we heard no evidence from any witness from DO2 it can be presumed that it made things administratively convenient to deal with one main supplier of crew.[81]In these circumstances I accept that this was an organised grouping of staff for the purposes of the crewing contract. I would observe that it would be unfortunate if employers could neutralise the protections given under the Regulations by engaging staff from various sources although they were all ultimately engaged in the same activity.