The purpose of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) is to protect the jobs of employees who are affected in business transfer situations. This law is, however, complex and sometimes even judges get it wrong.
This is what happened in Newman & ors v (1) Rollandene and (2) Mansfield Care, as the Employment Appeal Tribunal (EAT) decided the original Employment Tribunal decision needs to be revisited.
Facts of the case
A Care Home provided residential nursing and care services for up to 13 elderly people, either funded privately or by the Local Authority. The owner of the Care Home wanted to wind down the business or her involvement in it. Either way, discussions were entered into about its sale.
Ultimately, some of the residents were transferred to another Care Home and some of the staff followed them.
ET’s decision
The ET held that TUPE had applied to those transfers – as it does automatically in law – to continue the employments of those affected staff.
The ET also decided that staff who were identified as “bank staff” were protected by TUPE despite their unclear label, based on the true substance of their work.
Further, the ET decided that related consultation requirements had not been met.
EAT’s decision
President of the EAT the Honourable Mrs Justice Eady DBE was unsettled by the decisions reached by the ET and determined there was no clear basis in law for them, and that the ET must reconsider the question of whether TUPE applied to transfer those employments.
To recap quickly, TUPE may apply where there is a:
- transfer of business – the simplest example of which is the sale of part of a business to another business; or a
- service provision change – where a service is outsourced, re – tendered or taken back ‘in house’.
This blog was written by Ben Lindsay, Solicitor at didlaw.
