Nicholls (the BMA Appellants) & Anor v London Borough Of Croydon & Ors UKEAT/0003/18/RN

Appeal against a ruling that there was not a “relevant transfer” for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006. Appeal allowed.

The Claimants' employment transferred to the Council in 2015 and the Council then tried to change their terms and conditions. The Claimants contented that the Council's attempts to change their terms and conditions were contrary to regulation 4(4) TUPE 2006. They could only rely on regulation 4(4) if there was a relevant transfer. The Council accepted that there had been a transfer, and that the transferred entity retained its identity, but contended that the transfer was not a relevant transfer because what was transferred was not an "undertaking" or "economic entity". The ET decided that there was no relevant transfer for the purposes of the TUPE Regulations because the case fell within regulation 3(5) which provides:

"An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer."

The Claimants appealed.

The EAT allowed the appeal. The ET had rightly rejected arguments that: (a) the transferred public health team's activity of purchasing or commissioning health services was in itself an economic activity for the purposes of regulation 3(2); and (b) regulation 3(5), if otherwise applicable, did not apply because the transferring entity, a Primary Care Trust, carried on some economic activities. However, there was a strong indication that the public health team was carrying on an economic activity, and, having made that finding, the ET had either failed to give adequate reasons for its conclusion or was wrong, if and insofar it concluded that it was a sufficient reason for reaching that conclusion that the public health team did not bid for contracts and was not trying to obtain business. The ET was also wrong to conclude that, if there was a relevant transfer, the Claimants' employment was not transferred pursuant to regulation 4(1) of the TUPE Regulations and they were not entitled to rely on regulation 4(4).

Read the full text of the judgment on Bailii

Published: 23/11/2018 10:25