Mr James McGarry v Represented by: Ms K Graydon - Solicitor McDermott Contract Services Limited — 2017

The tribunal first considered whether Mr James McGarry was an employee of Alpine Ground Services Limited. It noted that he began work as a self-employed gardener in 1990, that AGSL was incorporated in March 2010, and that a written schedule of particulars dated 1 April 2014 described him as Chief Executive Officer on annual remuneration of GBP 54,000, together with pension, holiday, sick pay and notice terms. The tribunal also recorded that he was the majority shareholder and a director, that there was no evidence of a board to which he reported, and that much of his remuneration was taken as salary and dividends.

Applying the authorities it cited, including Regulation 2(1) TUPE 2006, Ready Mixed Concrete, Autoclenz and Fleming, the tribunal concluded that the absence of control over Mr McGarry was significant. It found that the reality was that he was not an employee of AGSL. On that basis, the unfair dismissal claim and the notice pay / breach of contract claim could not succeed.

The tribunal then considered, on an esto basis, whether Mr McGarry was assigned to the organised grouping of employees that transferred with the Queen's Cross Housing Association contract on 1 July 2016. It accepted that there had been a relevant service provision change and that an organised grouping existed, but held that the relevant service was the gardening specification in the tender documents rather than the wider contract-management and quality-checking work on which Mr McGarry relied. Relying on Botzen and the other TUPE authorities it cited, the tribunal found that he was not wholly or mainly assigned to the organised grouping transferring to McDermott. The claim was therefore dismissed in any event.