We provide Legal & HR advice to protect and support your business.

3 minutes reading time (582 words)

Transfer of Undertakings - Service Provision Charge

shutterstock 194604863

The key requirement for a service provision change to be covered by TUPE is that there is – immediately before the transfer – an organised grouping of employees whose principal purpose is carrying out the activity that is being transferred. That is not simply a matter of adding up what percentage of an employee’s time is spent on a particular activity – it is the employees’ principal purpose that matters. Key to that is the way in which the employees have been organised.

In Tess Esk and Wear Valleys NHS Foundation Trust v Harland and others however, the EAT accepted that it might be necessary to look beyond how the group is organised and consider the work that they were actually doing by the time of the transfer. The case involved the specialist care provided for a patient with severe learning disabilities. The South Tees Care Commission Group (CCG) contracted with Tess Esk and Wear Valleys NHS Foundation Trust (the Trust) to provide for this patient’s care by a dedicated team of NHS nurses. As his care progressed, however, he gained more independence and the staff working with him spent more of their time working with other patients instead.

In 2014 the care of the patient was put out to tender and the new contract was won by Danshell Healthcare Ltd. The question arose as to whether this was a TUPE transfer which meant that some NHS employees would transfer to Danshell. The NHS Trust at first suggested that 11 employees were employed for the principal purpose of looking after the patient and argued that they should all be transferred under TUPE. They subsequently softened their position and said that there were seven members of staff who spent more than 75 per cent of their shifts working with the patient and that therefore these seven staff should transfer.

An employment tribunal held that in fact there was no organised grouping of employees whose principal purpose was providing care for the patient. There was an organised grouping of 11 employees who were assigned to his care, but by the time of the transfer it could no longer be said that providing care for this particular patient was their principal purpose. It was artificial and arbitrary for the Trust to try to create a group of seven employees by adding up their number of shifts working with the patient. The truth was that by the time of the transfer all of the employees provided care for a range of patients and none of them could be said to have caring for this patient as their principal purpose.

The EAT upheld this finding. While the actual activities being performed at the time of the transfer did not necessarily determine the purpose of a group of employees, it was a relevant factor to consider in deciding what the purpose was. Where, as here, work was being done by far more employees than was needed to fulfil a particular purpose, that was good evidence that the purpose in question was not the ‘principal’ one for which they continued to be employed. The tribunal had been entitled to find that the principal purpose of the group in question had changed and was no longer to provide care for this particular patient. It followed that there had been no TUPE transfer.

Contact Us

To speak to one of our specialist solicitors about the above issue, please contact us today on 0808 1151 040 or complete our online enquiry form.

Employers Urged to Tackle Discrimination
Religious Dress in the Workplace - Achbita v G4S S...

Make an enquiry

Contact Kalra Legal Group

Please let us know your name.
Invalid Input
Please let us know your email address.
Please write a subject for your message.
Invalid Input
Please let us know your message.
CAPTCHA
CAPTCHA
Refresh Invalid Input

Call us 0808 1685860

 

What our clients say

“I am extremely grateful for the support I received from Anita during a very difficult time with a previous employer. It felt I was in a battle, but someone else was fighting that battle for me. Anita had my best interest at heart all the way, I really cannot praise her enough.”

R.B – Director at Software company

“I cannot thank you enough for all your efforts over the last 6 months working with our company to ensure we have taken all the necessary steps to protect our business and treat all our female staff equally.”

A.B - Managing Director of a Software Company

Contact us

KLG
Head Office
Suite 4, Ground Floor
Braywick House West, Windsor Road,
Maidenhead
Berkshire
SL6 1DN 

KLG
4th Floor
86-90 Paul Street
London
EC2A 4NE

Tel: 08081685860
Email: info@klglaw.co.uk

This website uses cookies to improve functionality and performance. By continuing to browse the site you are agreeing to our use of cookies.