Employment Law Update – TUPE: organised grouping of employees
24 March 2017
The Employment Appeal Tribunal (EAT) has considered the meaning of an “organised grouping of employees” for the purposes of a service provision change under The Transfer of Undertakings (Protection of Employees) Regulations 2006 (TUPE).
Tees Esk & Wear Valleys NHS Foundation Trust v Harland and others, EAT
A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 must involve an “organised grouping of employees…which has as its principal purpose the carrying out of the activities concerned on behalf of the client”.
In this case, a team of 27 carers was put in place by an NHS Trust for the purpose of providing care to a patient with severe learning difficulties. Over time, the patient’s condition gradually improved and he needed fewer carers. Some of the care team also provided care services to other residents in the same residential facility.
The contract for the provision of care to the patient was re-tendered and awarded to a new provider, Danshell Healthcare, who took over from the NHS Trust. The Trust identified seven employees whose employment transferred to Danshell under TUPE, on the basis that they had been engaged with caring for the patient for more than 75% of their shifts. The employees argued that no service provision change under TUPE had taken place, meaning their employment remained with the NHS Trust. At a preliminary hearing, the employment tribunal agreed that there had been no service provision change. The NHS Trust appealed.
The EAT upheld the tribunal’s finding that while an organised grouping of employees had originally been put together for the principal purpose of providing care to the patient in question, the principal purpose had been diluted over time. The requirement for employees to provide care for the patient had diminished, although it continued to be a subsidiary purpose of the grouping. The grouping’s dominant purpose by the time the contract transferred was providing care to other service users.
The EAT allowed the appeal on another ground.
This decision provides us with further clarity on the question of determining whether there is an ‘organised grouping’ for the purpose of a service provision change under TUPE. It is not simply a question of considering what the transferor’s original intention was when organising the grouping, but what the dominant purpose of the grouping was at the time of the purported transfer.
The content of this article is for general information only. For further information on TUPE, please contact a member of Birketts’ Employment Law Team. Law covered as at March 2017.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2017.