Is a change of care provider a TUPE transfer?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) continue to supply the Employment Appeal Tribunal with new conundrums to wrestle with. In Carewatch Care Services Ltd v Henry [2018] UKEAT 0219_17_2102 (21 February 2018), an employment tribunal judgment by Employment Judge Lewzey on a TUPE service transfer case was overturned by the EAT.

Care provider Sevacare (UK) Ltd had terminated its contract with Haringey Borough Council to provide care services to residents which the council had a duty to provide.

The council entered into several contracts with replacement care companies to provide services on a partly geographical basis. At first instance the ET decided that TUPE applied on the basis that there had been a service provision change from Sevacare to the new care providers.

On appeal, the EAT held that although the judge had considered the questions of whether there was an identifiable organised grouping of employees which had transferred, whether the services provided before and after the change of providers were the same, and whether the contract with Sevacare had been “fragmented” to the extent that TUPE did not apply, she had failed to give full consideration to the questions. In particular, the issue of fragmentation had not been properly considered.

The EAT remitted the case back to a new employment tribunal. The case is important because of the growth in the number of elderly people requiring home care services at a time when public budgets are being increasingly squeezed. Councils and care providing organisations need to know if and when TUPE applies in re-contracting situations, thus avoiding time-consuming and costly litigation. Similarly, the people providing and receiving home care need to know where they stand.