London Care Ltd & Carewatch Care Services Ltd v Henry & Ors UKEAT/0219/17/DA; UKEAT/0220/17/DA

Appeal against a finding that there had been a service provision change from Sevacare (UK) Ltd to one or more of the Second to Eighth Respondents for the purposes of Regulation 3(1)(b) of TUPE. Appeal allowed and remitted to a different Tribunal.

The Claimants worked for Sevacare, who had a contract with the London Borough of Haringey ("the Council") providing care for individuals whom the Council assessed as in need. Sevacare ended its contract with the Council and London Care and Carewatch, along with other care providers, took over. The EJ concluded that there had been a TUPE transfer and London Care and Carewatch appealed. The appeal was based on 4 grounds: 1) The EJ should have found that the relevant activity was so fragmented as to preclude any finding of a service provision change; 2) The EJ erred in concluding that the activities were carried out pre-transfer by an organised grouping of employees which has as its principal purpose the carrying out of the activities concerned on behalf of the client; 3) The EJ erred in concluding that each Claimant was assigned to such an organised grouping; and 4) The EJ's reasons were defective in various respects, in particular in relation to fragmentation, organised grouping and assignment.

The EAT allowed the appeal on the basis that the Employment Judge had not properly considered the issues of (1) fragmentation, and (2) whether the relevant activities had been carried out pre-transfer by an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned on behalf of the client. Further the Employment Judge's reasons were defective in various respects.

Published: 23/02/2018 11:03

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