TUPE can apply to a service provision change between temporary work agencies.
Lessons from Mach Recruitment Ltd v Oliveira 2025 EAT 107
Background to the case
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), a service provision change can trigger automatic employment transfer. If immediately before the change there is an “organised grouping of employees” whose principal purpose is to carry out activities for the client.
In the case of Mach Recruitment Ltd v Oliveira 2025 EAT 107, G Staff supplied agency workers to Butcher’s Pet Care Ltd (Butcher’s). That supply, and the group’s consistency, meant an organised grouping existed. When Mach took over and began supplying the same roles, TUPE applied.
Organised grouping: no formal structure needed
Mach argued that the grouping was incidental – driven by demand rather than intentional planning. However, the Employment Appeal Tribunal rejected this, instead deciding that:
- Formal structuring or documented intent isn’t necessary.
- Consistent assignment of the same individuals in the same roles constitutes an organised grouping – even in fluid agency contexts.
- The Employment Tribunal’s reliance on credible witness evidence – Mrs Oliveira consistently working with the same team – was sufficient. Mach’s failure to counter with its own evidence was decisive.
Burden of proof and evidential strategy
A critical lesson in this case was that whoever is best placed to provide evidence at the Tribunal must do so. Here, Mach did not present evidence that the arrangement was ad hoc or incidental. As a result, the Employment Tribunal relied upon Oliveira’s credible witness evidence.
HR takeaway:
- Maintain contemporaneous documentation about operational arrangements – especially assignment practices – and organisational intentions behind them.
- If you wish to argue that no organised grouping exists, proactively gather internal records or evidence showing variability in assignments, dispersed worker pools, or non-client-targeted deployment.
Agency workers and TUPE scope
A technical nuance: whether agency workers themselves count under TUPE depends on employment status and whether they fall within an organised grouping. In this case, Oliveira was an employee of the agency (G Staff), meaning she had TUPE protections. The parties did not challenge this scope question in the appeal.
HR takeaway:
- Assess agency workers’ contractual status – those directly employed by agencies and consistently assigned to a client may attract TUPE protection.
- Consider whether alternative models or contractual constructs expose or mitigate risk.
What this means for employers and HR teams
| Challenge | Recommended action |
| Prevent unintended TUPE transfers during supplier changes | Document assignment patterns and demonstrate lack of stable grouping if TUPE not intended. Keep records of shift rotations, workforce pools, and staff allocation logic. |
| Clarify TUPE scope | Ensure clarity on contract status – agency worker vs. subcontractor vs. employee – to determine TUPE applicability. |
| Manage transitions | If TUPE applies, follow statutory obligations – inform and consult, transfer liabilities, and respect employment continuity. |
