Whether or not the employment of an organised grouping of workers has been transferred from one employer to another for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) is a matter of critical significance that is often far from easy to resolve. That was certainly so in the case of a team of NHS carers who were brought together to provide nursing for a severely disabled man (Tees, Esk and Wear Valleys NHS Foundation Trust v Harland and Others).

The team was established by Tees, Esk and Wear Valleys NHS Foundation Trust solely for the purpose of meeting the extensive needs of the man, who at that time required seven people to care for him. As his condition improved, however, those needs decreased and he eventually required only one-to-one care. The team maintained its identity as an organised grouping but members were also required to provide care for other service users.

A private sector company, Danshell Healthcare Limited, was subsequently awarded a contract to care for the man and an issue arose as to whether the team’s employment had transferred to the company by operation of TUPE. The Trust claimed that it had, but the company and members of the team, who wished to remain working in the public sector, argued that they remained employed by the Trust. However, Danshell Healthcare reluctantly agreed to take on those whom the Trust was refusing to treat as still in its employment.

In ruling on preliminary issues in the case, an Employment Tribunal (ET) found that there had been no TUPE transfer on the basis that the reduction in the man’s needs had diluted the principal purpose for which the team was originally established. That purpose was no longer the provision of care to the man at the date on which the contract was awarded and there had therefore been no service provision change for TUPE purposes. In the light of that finding, the ET went on to declare that the members of the team were at all times employed by the Trust and not at any time by Danshell Healthcare.

In rejecting the Trust’s challenge to that ruling, the Employment Appeal Tribunal upheld the ET’s finding that the principal purpose of the organised grouping had changed over time. The ET had rightly focused on the principal purpose that existed immediately prior to Danshell Healthcare taking over the man’s care. However, in declaring that the team had at all times remained employed by the Trust, the ET had strayed beyond the scope of the issues before it and the Trust’s appeal was in that respect allowed. Determination of that issue would require full consideration of evidence and submissions by the parties.