Transfer of Undertakings – Service Provision Charge

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.

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