Care package retenders: TUPE or not to TUPE?

The Employment Appeal Tribunal examined the transfer of care of an individual (CE) between two service providers to determine whether his carers TUPE transferred. They did not – they were found not to be part of a team whose “principal purpose” was CE’s care. What steps should you be taking in advance of potential transfers?

CE was in the care of TEWV, an NHS Foundation Trust. A specific team, dedicated to CE’s care, was formed for him in 2005.  Initially CE needed care at a ratio of 7 to 1, but from 2005 until 2015, CE’s needs reduced and by 2015 he was largely provided with 1 to 1 care.

Over time, as CE’s care needs reduced, CE’s team was increasingly required to work with and provide care to other service users. Then in 2014, CE’s care package was put out to tender and the successful provider was DH Limited, a large company providing care to people with learning disabilities. CE was to move to an apartment owned by DH.

TEWV believed that the TUPE Regulations would transfer CE’s carers to DH. Originally TEWV thought that 11 of their employees would transfer but they later determined that 7 of the 11 would transfer, as they worked for more than 75% of their shifts with CE.

The staff identified did not believe that they should TUPE transfer to DH (preferring to remain in the NHS) and claimed unfair dismissal. The Employment Tribunal held a preliminary hearing to determine whether the staff transferred.

The Tribunal (and, subsequently, the Appeal Tribunal) had to consider the TUPE definition of “Service Provision Change”. This required finding:

  1. An organised grouping of employees
  2. [whose] principal purpose [is]
  3. The activities concerned

There was a clear organised grouping of employees. CE’s “team” was formed in 2005. The service provided was CE’s care (unqualified nursing assistants to facilitate CE’s goal of living independently).

In 2005, the principal purpose of CE’s team was the care of CE. By 2015, with the changes over time to CE’s care, this principal purpose had fallen away. It was no longer predominantly the care of CE. The Tribunal calculated that by 2015 (and therefore immediately before the transfer) CE’s team provided 66% more care than CE now required. The position of CE’s team had therefore changed. Their principal purpose was no longer the care of CE. There was therefore no TUPE transfer and the staff did not transfer from TEWV to DH.

Comment

Whether or not staff transfer under TUPE is one of the most difficult areas of TUPE. It always depends on the specific factual matrix that applies at the time of transfer and this case is a good example of the difficulties that care providers and staff themselves have in identifying a transfer.  CE’s care before and after transfer was likely to be very similar. If the Trust had reorganized CE’s care so that a smaller dedicated team were caring for him immediately prior to the transfer, it is much more likely that the team would have transferred.

Instead, the work of CE’s team of carers had changed so that at the point of transfer they provided more care to other service users than to CE. At that point, none of them could be said to be properly his “team”. As the Tribunal and Appeal Tribunal found, CE’s team’s purpose was no longer predominantly CE’s care.

If you are a care provider poised to accept a transfer of staff into your organisation…

Carefully consider the staff list you have been given. If you are concerned about the number of staff transferring or suspect they are not all assigned to the part of the service that you’re taking over, close scrutiny of the work within the service may reveal there is no TUPE transfer.

If you are a provider of services considering the transfer of staff out of your organisation with the loss of a contract…

Consider in advance which staff should transfer. It may be possible to reorganize the way in which you are providing the service to influence which (and how may) staff transfer. The earlier you do this, the lower the risk of challenge.

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