19th August 2011

In the case of Nottinghamshire Healthcare NHS Trust v Hamshaw and others UKEAT/0037/11, the EAT has held that a transfer of a care service from an NHS trust to a private sector service provider was not a TUPE transfer because of the fundamental difference in the ethos of the old and new care arrangements and the manner of its provision.

These changes included the care provision changes from institution to home, from management to support and there was also a change in the routines of the residents and staff duties post transfer.

The facts

In this case a residential care home for vulnerable adults operated by an NHS Trust closed and the residents were rehoused the next day in to their own homes and their care transferred to a private sector care providers.

It was held that there was only a transfer of the care assistants and residents but not the premises, equipment, resources and organisation.

The NHS argued that there had been a TUPE transfer to the private sector service provider. The private sector service provider disagreed. 

Decision

The EAT held that there was no standard or service provision TUPE transfer mainly because of the fundamental difference in the ethos of the old and new care arrangements and the manner of its provision and that the NHS Trust was therefore potentially liable for claims made by former care workers and not the private sector care providers, such as unfair dismissal and redundancy.

Implications

The case is bad news for NHS employers and potentially GP surgeries, given the policy direction for social care services (and potentially primary and general medical services) move towards the independence of service users. If this case is followed, TUPE will not apply in these circumstances which will mean possibly expensive employment claims for NHS type employers.

It is good news however for private sector employers considering taking over an NHS Care home or contract for care services as there should be much less risk given TUPE should not apply.

If you would like to discuss this case further please feel free to contact William Addis on telephone 01689 887834 or by email to william.addis@cwj.co.uk