23 March 2017 #Employment
For there to be a service provision change under TUPE, there must, immediately before the transfer, be an organised grouping of employees situated in Great Britain which has as its ‘principal purpose’ the carrying out of the activities on behalf of the client.
The Employment Appeal Tribunal, in Tees Esk & Wear Valleys NHS Foundation Trust v (1) Harland & Ors (2) Danshell Healthcare Ltd, has held that in applying this test, the actual activities being carried out at the point of transfer should be considered and that it is possible for the purpose to change over time.
In this case, 27 employees were engaged to provide care to an individual. The individual’s needs improved over time and, as such, the number of employees providing care reduced. In addition, the employees spent more time caring for others.
The Employment Tribunal (and later, the Employment Appeal Tribunal) found that that whilst the claimants were originally an organised grouping required to provide care to the individual, the ‘principal purpose’ changed when the employees looked after other occupants.