When assessing the 'principal purpose' of an organised grouping of employees under TUPE, is an employment tribunal entitled to look at the actual activities being carried out?
Yes, held the EAT in Tees Esk & Wear Valleys NHS v Harland.
In 2005, a group of workers were organised into a team to provide care for an individual, CE. By 2015, when the contract passed to the second Respondent, the group of workers still existed. However, as CE's care needs had reduced, the team was predominantly caring for other service users.
The employment tribunal found that the 'principal purpose' of the group was no longer the provision of care to CE, therefore there was no service provision change. The NHS Trust appealed.
The EAT dismissed the appeal on this point, holding that the 'principal purpose' should be determined by looking at the dominant purpose of the organised grouping at the relevant time. The employment tribunal was entitled to look at the actual activities being carried out immediately before the service provision change, as well as the intention behind the organisation of the grouping, although neither were necessarily determinative. In this case, care for CE had become a subsidiary purpose, rather than a dominant one.
Thanks to Paul Livingston of Outer Temple Chambers for preparing this case summary.