Transfer of Undertakings – Service Provision Charge

The key requirement for a service provision change to be covered by TUPE is that there is – immediately before the transfer – an organised grouping of employees whose principal purpose is carrying out the activity that is being transferred. That is not simply a matter of adding up what percentage of an employee’s time is spent on a particular activity – it is the employees’ principal purpose that matters. Key to that is the way in which the employees have been organised. In Tess Esk and Wear Valleys NHS Foundation Trust v Harland and others however, the EAT accepted that it might be necessary to look beyond how the group is organised and consider the work that they were actually doing by the time of the transfer. The case involved the specialist care provided for a patient with severe learning disabilities. The South Tees Care Commission Group (CCG) contracted with Tess Esk and Wear Valleys NHS Foundation Trust (the Trust) to provide for this patient’s care by a dedicated

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