TUPE revisited in the Employment Appeal Tribunal

• Discusses Bicknell and another v NHS Nottingham and Nottinghamshire Integrated Commissioning Board [2024] EAT 103.
• Shows how commissioning is not an economic activity for the purposes of TUPE, where the commissioner does not provide the goods or services on the market itself.

The Transfer of Undertaking (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) was once ‘box office’. It was all over the legal press. There were conferences, government working parties and books on it. And if TUPE were a crime, I’d be guilty of all three. But in recent years, like a faded film or rock icon, TUPE’s star has faded, and it’s generally been able to get on quietly with its life. But on 25 June 2024, TUPE did make an appearance in the Employment Appeal Tribunal (EAT) before Sheldon J in Bicknell and another v NHS Nottingham and Nottinghamshire Integrated Commissioning Board [2024] EAT