In the recent case of Pulse Healthcare v Carewatch Care Services Ltd & Ors , the Employment Appeals tribunal (EAT) determined that when carers employed by a contractor were engaged under zero hours contracts, it was open to a tribunal to find that they were employed under an umbrella contract of employment, with continuity of employment preserved.
Carewatch Care Services Ltd contracted with a PCT to provide 24 hour care for a severely disabled patient. The contract was taken over by Pulse Healthcare and the carers asserted TUPE rights.
First, the tribunal had to determine whether the carers were employees and whether, for the purpose of making unfair dismissal claims, they had continuous service. The carers worked under a zero hours contract which stated that there was no obligation to provide work and so the employees were free to work for another employer. Pulse and Carewatch maintained that the carers were not employees since there was no mutuality of obligation.
In practice, the tribunal found that the carers performed services, were obliged to carry out the work offered, were paid for the work and had to do it personally. The tribunal described it as “fanciful” to suppose that the employer relied only on ad-hoc arrangements in the provision of such a critical care package service. The argument that these were individual discrete contracts rather than a global umbrella arrangement was given short shrift.
The EAT held that the employment judge had been entitled to hold that the carers were employed by Carewatch under global contracts of employment with full continuity of service.
The TUPE question was remitted to a tribunal for further deliberation.
This case highlights the need to ensure that bank working arrangements do not create such global employment rights.