TUPE or not TUPE?

The subject of transfer of undertakings provides, as ever, opportunities for policy debate and legal interpretation. A trawl of recent cases on the EU Acquired Rights Directive and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) produces some cases of real importance.

Hamshaw

In Nottinghamshire NHS Trust v Hamshaw and others (EAT/0037/11) the Employment Appeal Tribunal (EAT) held that there cannot be a relevant transfer under TUPE, either by way of a transfer of an undertaking under reg 3(1)(a), or a service provision change under reg 3(1)(b), where the services provided to a client are not fundamentally or essentially the same as they were before the change of provider.

In this case Nottinghamshire Healthcare NHS Trust ran a care home. This was then closed and residents re-housed into homes of their own. Their care was transferred to two new independent providers. A number of care workers in the former home were