Employment Appeal Tribunal clarifies organised grouping requirements under TUPE regulations

The Employment Appeal Tribunal's judgement in Mach Recruitment Ltd v Maria Oliveira delivered on 1 August 2025, provides crucial clarification on the interpretation of "organised grouping of employees" under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The decision addresses fundamental questions about when employee groups qualify for protection during service provision changes.

The appeal centred on whether the Employment Tribunal correctly identified an organised grouping sufficient to constitute a service provision change. Maria Oliveira had worked through a temporary work agency that assumed responsibilities from G-Staff Ltd in providing services to Butcher's Pet Care Limited. Mach Recruitment Ltd challenged the tribunal's finding that an adequate "grouping" existed to trigger TUPE protections.

The organised grouping test

The EAT examined whether the Employment Judge erred in concluding that employees were deliberately grouped with the principal purpose of transferring activities associated with Butcher's operations. Mr Wood, representing Mach Recruitment, argued that the grouping resulted from coincidental individual working patterns rather than intentional organisation. He contended that organised grouping requires more than mere co-location and demands deliberate employer intent.

The Respondent's position, presented by her son Mr Oliviera, emphasised the consistent nature of Oliveira's work alongside the same colleagues throughout her employment. This consistency, he argued, demonstrated an organised grouping's existence, justifying the Employment Judge's inference regarding the transferor's intent based on available evidence.

Legal framework and precedent

The EAT referenced established case law to clarify organised grouping requirements. The tribunal emphasised that such groupings must result from deliberate organisation aimed at fulfilling specific contractual client needs, rather than coincidence. Regulation 3(3) of TUPE requires an organised grouping of employees whose principal purpose involves carrying out relevant activities.

The decision reinforced that employers cannot avoid TUPE obligations merely by asserting that employee arrangements occurred coincidentally. The tribunal must examine the practical reality of working arrangements and draw reasonable inferences from the evidence presented.

Evidence evaluation

The EAT carefully scrutinised the evidence, determining that the tribunal had properly identified an organised grouping. Employees were consistently assigned to assist Butcher's operations and worked collaboratively in this capacity. The tribunal's inference from this evidence was deemed reasonable, with service provision change principles correctly applied.

The court's emphasis on evaluating the claimant's evidence credibility proved paramount. The tribunal noted the employer's failure to provide comprehensive counter-evidence, contributing to the decision favouring the Respondent.

Implications for employers

The EAT dismissed Mach Recruitment's appeal, upholding the principle that mere employee co-location proves insufficient without deliberate intention to establish organised grouping for specified activities. This establishes that employers cannot structure arrangements to circumvent TUPE obligations through claims of coincidental working patterns.

The judgement clarifies that tribunals will examine the substance of working arrangements rather than accepting superficial characterisations. Where employees consistently work together on specific client activities, this may constitute organised grouping regardless of how employers describe these arrangements.

Practical considerations

This decision emphasises the importance of careful workforce structuring when succeeding to contractual obligations. Employers must recognise that consistent assignment of particular employees to specific client work may create organised groupings triggering TUPE protections, even where this was not the stated intention.

The case demonstrates that TUPE's protective scope extends beyond formal organisational structures to encompass practical working arrangements. This reflects the legislation's underlying purpose of safeguarding employee rights during business transfers and service provision changes.

The Mach Recruitment decision reinforces that TUPE interpretation focuses on substantive employment arrangements rather than technical distinctions, requiring employers to consider the practical implications of workforce organisation in client service delivery.