The EAT case of Nottinghamshire Healthcare NHS Trust v Mr Hamshaw and others looks at the tricky question of just when is there a transfer of undertaking or service provision change?
This case concerned the Tribunal finding that there was no transfer where residents of a care home operated by an NHS Trust were rehoused in individual homes and the care workers were offered new jobs at the service users’ homes.
The EAT agreed with the ET that the economic entity did not retain its identity and the services provided were not fundamentally or essentially the same after the change as they had been before. The main distinctions found included that after the change staff would sleep in the same accommodation as the residents whereas previously staff were awake on night duty, they would be working in an individual flat rather than a care home, and whilst the staff continued to work in the new flats, equipment, resources were all different.
An interesting case to remind us not to jump to the conclusion that TUPE will apply in situations where employees transfer and continue to undertake similar services.