Various conditions have to be satisfied before there can be a service provision change under TUPE. In particular there has to be an organised grouping of employees, which has as its "principal purpose" the carrying out of activities on behalf of the client. In Tees Esk & Wear Valleys NHS Foundation Trust v Harland, the tribunal and EAT had to examine a situation in which the "principal purpose" of an organised grouping of employees had changed over time.
From 2005 onwards an NHS Commissioning Group had responsibility for arranging full time care for a severely disabled patient. Initially a team of 27 individuals was caring for him, but the patient's condition improved over time, and by 2012 the team had reduced in size to 11 people. As the patient's condition improved further he needed fewer staff to assist him, and his team of carers also provided care for other service users in the building where the patient lived. In 2014 the patient's care contract was put out to tender, and another organisation provided his care from early 2015. The question was whether this amounted to a service provision change so that the staff caring for the patient transferred to the new provider.
The tribunal was satisfied that there was an organised grouping of employees caring for the patient and that all 11 employees were assigned to that organised grouping. The group had originally been established to provide that care. However, the tribunal found that by the time of the transfer that "principal purpose" had fallen away; at that stage the group's principal purpose was to provide care to other service users in the building, not predominantly to the individual patient. There was no service provision change.
The outgoing service provider failed in its appeal against that decision. The EAT found that the tribunal was correct to concentrate on the position immediately before the transfer, as required under TUPE. By then, the patient needed approximately 125 hours of care a week, while the employees in question worked for a total of 375 hours. This supported the tribunal's analysis that although the team of employees had originally been put together to support the patient's needs, its main purpose had changed over time. The purpose of caring for the patient had diminished so that it was no longer the dominant purpose.