Case law: Team of employees set up to do particular work are not subject to TUPE rules because other work took over

Employers changing the duties of an organised grouping of workers originally assigned to carry out particular work, should assess whether the change may affect the workers' protections under TUPE laws if the work is taken over by a new provider, following a recent ruling.

A team of staff was created solely to look after an individual in the care of an NHS Trust. The individual's health improved and the staff were also asked to provide care to other patients in the same location.

When the care of the individual was taken over by a second organisation the issue arose as to whether the team of staff should also transfer to the new organisation under TUPE rules.

The TUPE rules are designed to protect employees or contractors in certain circumstances. These include when there is a 'service provision change', such as when the work they are carrying out for their employer is transferred to a new organisation, by ensuring their contracts of employment are taken over by the new organisation.

However, for TUPE to apply on a service provision change there must be an 'organised grouping of employees' which 'has as its principal purpose the carrying out of the activities concerned on behalf of the client'. Only if there is such a grouping will the employment contracts of the employees assigned to the organised grouping of employees pass to the new organisation.

It was agreed that there had been a service provision change when the patient's care was transferred to a new organisation. However, the staff in the team wanted to remain as NHS employees rather than transfer to the new provider. They therefore argued that TUPE did not apply because the principal purpose for which their team had been set up (to care for the individual patient) no longer applied.

The Employment Appeal Tribunal (EAT) agreed. It found that there was initially an organised grouping of employees set up to look after the patient, but the fact the team now did work for other patients meant its principal purpose was no longer the care of the particular patient it had been set up to look after. Therefore, the TUPE rules did not apply – even though the words 'principal purpose' did not mean 'sole purpose' but 'dominant purpose'.

In this case, the EAT found that by the time of the transfer of the patient's care to a new organisation, the dominant purpose of the organised grouping was to care for other patients. Caring for the individual had become subsidiary to that other work.

Operative date

• Now

Recommendation

• Employers changing the duties of an organised grouping of workers originally assigned to carry out particular work should assess whether the change might affect the protections those workers enjoy under TUPE laws if that work is taken over by a new provider

Case ref: Tees Esk & Wear Valleys NHS Foundation Trust v Harland & Ors UKEAT/0173/16/DM

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