In Gormaly v London Borough of Hillingdon, the Employment Appeal Tribunal overruled a decision of an Employment Tribunal that employees of a family business carrying out painting and decorating work for the London borough were assigned to an organised grouping of employees, the principal purpose of which was to carry out those activities for their employer on behalf of the Borough.
The Borough terminated its contract with the employer and decided instead to bring the painting and decorating services back in-house giving rise to a potential service provision change transfer under TUPE.
The Employment Judge at the ET found that the employees were so assigned to the organised grouping and therefore eligible to the Borough.
However, this decision was overturned at the EAT due to a failure on the part of the Employment Judge to make clear findings of fact relevant to this assignment question. Judges hearing such cases must consider the contractual duties of the employees and not merely those duties that they did perform but also those duties that their employer could call upon them to perform under their contracts of employment.