NHS Trust loses appeal over TUPE in case where care home residents rehoused

An NHS trust has failed to establish that there was a TUPE transfer in a case where residents of a care home it operated were rehoused in individual homes.

In the case of Nottinghamshire Healthcare Nhs Trust v Hamshaw & Ors (Transfer of Undertakings: Service Provision Change) [2011] UKEAT 0037_11_1907, the 12 claimant care workers were formerly employed by the trust at Hillside House, a care home for adults with learning disabilities.

The home was closed on 31 March 2010, with the residents re-housed into homes of their own. Their care was to be transferred to two independent care providers, Perthyn or Choice Support.

The care workers were offered jobs with the new providers, in most cases to sleep in at the service users’ homes. They were also expected to assist the former residents with managing their homes and domestic tasks such as cleaning, shopping, food preparation and cooking.

The care workers were told by the NHS Trust that this was a relevant transfer within TUPE and that their employment was to continue with Perthyn (in the case of two employees) and Choice Support (for the ten other members of staff). Nottinghamshire Healthcare then proceeded to stop paying them with effect from 1 April 2010.

The claimants brought claims for unfair dismissal, pay in lieu of notice, outstanding holiday pay and a contractual redundancy payment. Their union, Unison, also sought a protective award for failure to consult about the proposed transfer.

The Employment Appeal Tribunal concluded that Judge Morgan at the Employment Tribunal was entitled to find there was no transfer.

Mr Justice Bean rejected the Trust’s argument that the economic entity formerly comprised in Hillside House, although “fragmented” post-transfer, had retained its identity.

In addition the judge ruled that the services provided by the care workers were not fundamentally or essentially the same after the change as they had been before.