Nottinghamshire Healthcare NHS Trust v Hamshaw and others EAT/0037/11

Nottinghamshire Healthcare NHS Trust (“the Trust”) operated a care home, Hillside House. The home closed and the residents were re-housed into their own homes with effect from 1 April 2010.  

The residents’ care was allocated to two private care providers, Choice Support (“CS”) and Perthyn (“P”). The Trust informed the care workers that TUPE applied and their employment would continue with either CS or P. However, the care workers were not retained by CS or P.  

The 12 Hillside House employees issued tribunal claims for unfair dismissal, pay in lieu of notice and outstanding holiday pay.  

The Tribunal decided that TUPE did not apply and dismissed the claims against CS and P. It held that following the changes, the care service was different to that provided prior to 1 April 2010. The Trust appealed.

The EAT upheld the Tribunal’s decision. It agreed that the Tribunal was correct to find that no transfer had occurred under TUPE. Although the residents and care assistants had transferred, the premises, resources, equipment and organisation had not.  

Further, the service provision change test had not been satisfied as the services carried out by CS and P were not “fundamentally or essentially the same” as those carried out previously by the Trust.

Comment

This decision is a useful reminder that in order for TUPE to apply the economic entity must retain its identity post transfer.