Miss Susan McCready v AMK Ltd — 2022

At this preliminary hearing the tribunal considered only whether Miss Susan McCready was assigned to the organised grouping of employees transferring with BP Carluke on 25 January 2021 under regulation 4(1) of TUPE. The first respondent did not attend, but the tribunal proceeded in its absence. It found that the relevant service provision change concerned the customer sales activities at BP Carluke and that the organised grouping consisted of employees deliberately organised and essentially dedicated to those activities.

The tribunal accepted that the claimant had worked for the first respondent as deputy store manager and that her principal place of work had become BP Dukes, Airdrie after a flexible working request was granted in 2010. In September and October 2020 the first respondent sought to move her to BP Carluke to cover staffing shortages, but the claimant objected, remained off sick, and never agreed to the move. The tribunal found that the employer had no contractual entitlement to unilaterally change her permanent place of work.

On that basis the tribunal concluded that her place of work did not transfer from BP Dukes, Airdrie to BP Carluke and that she was not, and could not lawfully have been, included in the organised grouping whose principal purpose was the activities carried out at BP Carluke. The claim against the third respondent was therefore dismissed. The tribunal noted that the claims against the first respondent were to be listed for a later merits hearing.