In Nottinghamshire Healthcare NHS Trust v Hamshaw EAT/0037/11, the Employment Appeal Tribunal ("EAT") analysed what constituted a relevant transfer under TUPE where the services provided were different pre- and post-transfer. It concluded that for there to be a "service provision change" under TUPE (in other words, an outsourcing, an insourcing or a change of service provider), there can be no relevant transfer where the services carried out after the transfer are not "fundamentally or essentially the same" as those provided before the transfer. Each case will turn on its own particular facts.
The Trust ran a care home, which was closed and its residents allocated to private accommodation. The care of those residents was transferred to new providers and the old carers claimed that TUPE applied to transfer them to the new providers. The EAT held that TUPE did not apply as the activities to be undertaken by the new providers were not "fundamentally or essentially the same" as those previously undertaken. For example, the residents were moved from a care home to their own homes and they were encouraged to cook and clean for themselves rather than the carers doing this for them. It was acknowledged, however, that minor differences between the nature of the tasks carried out or the way in which they are performed, or the involvement of some additional task, should not operate to disapply the application of TUPE where there is a service provision change.
This decision shows that the question of whether or not a relevant transfer has occurred is highly fact-specific. However, it is important to consider these issues when negotiating contracts with new service providers to ensure that the legal position is understood and the financial implications of any potential claims by employees are addressed.