EAT allows appeal in relation to “public administrative authority” exception to the application of the 2006 TUPE Regulations


Re: Nicholls (the BMA Appellants) & Anor v London Borough of Croydon & Ors [2018] UKEAT 0003/18/2308

In this case the claimants were challenging their dismissals following the transfer of public health functions from Primary Care Trusts to local authorities under the Health and Social Care Act 2012.

The Employment Tribunal had decided that there was no relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) because the case fell within reg 3(5).  The Tribunal 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 reg 3(2); and (b) reg 3(5), if otherwise applicable, did not apply because the transferring entity, a Primary Care Trust, carried on some economic activities. Also it had found that all or almost all of the work done by the public health team could be, and in fact was, offered by non-state actors operating in the same market and this was a strong indication that the public health team was carrying an economic activity.

The EAT allowed the appeals finding that 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. Further, the ET was wrong to conclude that, if there was a relevant transfer, the claimants’ employment was not transferred pursuant to the TUPE Regulations, reg 4(1) and they were not entitled to rely on reg 4(4).

Darryl Hutcheon was involved in this case.