Merger of NHS Commissioning Groups does not give rise to business transfer under TUPE
The Employment Appeal Tribunal (EAT) has held that employees are not protected under TUPE when NHS commissioning groups merge.
When does a TUPE transfer happen?
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protects employees when a business changes ownership or when services are transferred to a new provider.
A business transfer is when a business, or part of a business, moves from one employer to another and there is a transfer of an economic entity which retains its identity. An economic entity is defined as an organised grouping of resources which has the objective of pursuing an economic activity.
What are the facts of the case?
In Bicknell & BMA v NHS Nottingham and Nottinghamshire Integrated Commissioning Board [2024], Dr Bicknell worked for a Clinical Commissioning Group (CCG) in Nottinghamshire as a GP Clinical Lead. A CCG is a statutory body responsible for commissioning healthcare services. In April 2020, six CCGs in Nottinghamshire merged as part of a reorganisation and Dr Bicknell's employment was terminated.
Dr Bicknell claimed that his employment should have transferred to the respondent under TUPE. He argued that he had been automatically unfairly dismissed. The British Medical Association (BMA) also argued that there had been a failure to inform and consult under TUPE.
Tribunal claim
The Tribunal dismissed the claims, finding that there was no 'relevant transfer' under TUPE because TUPE only applies where there is a transfer of an economic entity carrying out economic activities. The Tribunal had regard to previous case law on this point, which held that the purchasing and commissioning of goods and services cannot in itself constitute an economic activity. The CCG would also need to provide goods and services on the market in order for a transfer to fall within the scope of TUPE.
The claimants appealed to the EAT.
EAT decision
The EAT dismissed the appeal. Whilst the EAT expressed doubts in respect of the validity of the prior case law in this area, it did not find that the case law authority was manifestly wrong. On this basis, it was right for the Tribunal to have followed that existing case law in reaching its decision. In the absence of a case law position that is obviously or manifestly wrong, the only way to challenge it would be at the Court of Appeal.
Learning points for employers
This is an interesting decision that highlights the scope of the protection afforded under the TUPE regulations. However, given the EAT's comments, it may well be that we see future appellate law in this area.