TUPE and service provisions changes – when does TUPE apply?

Monday, 25 July 2011 00:00

This week, the Employment Appeal Tribunal handed down some useful guidance for employers on the question of when TUPE applies to a service provision change where there has been a change of emphasis to the job.

In Nottinghamshire Healthcare NHS Trust v Hamshaw and others The EAT considered a case in which a number of employees had been employed at a care home caring for residents. A decision was made that the residents would be moved into their own homes in order to give them greater freedom and allow for more independent living. This involved a service provision change. Following the transfer, the care was to be carried out in a substantially different way to allow greater independence.

This raised the question of whether the staff working in the care home should have transferred to the new employer providing the care in the residents' own homes. The Employment Tribunal said TUPE did not apply. The EAT agreed with that analysis and stated that in order for TUPE to apply, the activities carried on by the service provider after the transfer had to be "fundamentally or essentially the same". In this case it was relevant that, even though care was still required for those residents and in accordance with old care plans, it was required in a substantially different way.

Tozers' partner and employment law specialist Paul Kelly comments of the judgment "This decision provides a useful reminder to employers involved in service provision changes that whilst the area of law is complicated, the tribunals will take a common sense and pragmatic approach when considering whether TUPE applies to a transfer. TUPE may not always apply to every service provision change and taking early advice is essential".