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TUPE: Impact of Fragmentation

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Should a tribunal that is considering whether there has been a TUPE transfer after a service provision change, clearly identify the 'relevant activities' that have transferred?

Yes, held the EAT in London Care v Henry, upholding an appeal against a finding that there had been a TUPE transfer after a home care provider, Sevacare, ended its contract with Haringey Council.

Sevacare was replaced by four major providers. The tribunal had not made sufficiently clear findings as to the activities carried out by the outgoing contractor. The EAT was not wholly satisfied that the tribunal had found that the 'activities' in question were the overall provision of care services with the Council as the 'client', or sub-sets of the overall contract of care packages for service users.

Noting that "the first task for the employment tribunal is to identify the relevant activities carried out by the original contractor", the tribunal ought to have determined if the activities transferred were fundamentally the same post-transfer, since 'fragmentation' might prevent a transfer from happening if the activities are not fundamentally or essentially the same after a change of contractors.

Here, work which, pre-transfer, had been organised generally on the basis of carers working within a particular zone was then organised according to both the capacity of the various contractors, and postcodes. The tribunal had also incorrectly considered fragmentation on the basis of it applying to organised groupings of employees, not the underlying activities. The case was remitted for reconsideration.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.