13 January 2012 / John McMullen

Issue: 7496 / Categories: Features , Tribunals , Terms&conditions , Disciplinary&grievance procedures , TUPE , Employment

printer

mail-detail

TUPE or not TUPE?

© Copyright LexisNexis 2026. All Rights Reserved.

John McMullen reviews recent case law on TUPE in the UK & Europe

The subject of transfer of undertakings provides, as ever, opportunities for policy debate and legal interpretation. A trawl of recent cases on the EU Acquired Rights Directive and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) produces some cases of real importance.

Hamshaw

In Nottinghamshire NHS Trust v Hamshaw and others (EAT/0037/11) the Employment Appeal Tribunal (EAT) held that there cannot be a relevant transfer under TUPE, either by way of a transfer of an undertaking under reg 3(1)(a), or a service provision change under reg 3(1)(b), where the services provided to a client are not fundamentally or essentially the same as they were before the change of provider.

In this case Nottinghamshire Healthcare NHS Trust ran a care home. This was then closed and residents re-housed into homes of their own. Their care was transferred to two new independent providers. A number of care workers in the former home were

If you are not a subscriber, subscribe now to read this content

If you are already a subscriber sign in

...or Register for two weeks' free access to subscriber content

TUPE or not TUPE?

© Copyright LexisNexis 2026. All Rights Reserved.

John McMullen reviews recent case law on TUPE in the UK & Europe

The subject of transfer of undertakings provides, as ever, opportunities for policy debate and legal interpretation. A trawl of recent cases on the EU Acquired Rights Directive and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) produces some cases of real importance.

Hamshaw

In Nottinghamshire NHS Trust v Hamshaw and others (EAT/0037/11) the Employment Appeal Tribunal (EAT) held that there cannot be a relevant transfer under TUPE, either by way of a transfer of an undertaking under reg 3(1)(a), or a service provision change under reg 3(1)(b), where the services provided to a client are not fundamentally or essentially the same as they were before the change of provider.

In this case Nottinghamshire Healthcare NHS Trust ran a care home. This was then closed and residents re-housed into homes of their own. Their care was transferred to two new independent providers. A number of care workers in the former home were

If you are not a subscriber, subscribe now to read this content

If you are already a subscriber sign in

...or Register for two weeks' free access to subscriber content

SourceURL:

Links:

E-newsletter Sign-Up

MOVERS & SHAKERS

London Solicitors Litigation Association—John McElroy

London Solicitors Litigation Association—John McElroy

Fieldfisher partner appointed president as LSLA marks milestone year

Kingsley Napley—Kirsty Churm & Olivia Stiles

Kingsley Napley—Kirsty Churm & Olivia Stiles

Firm promotes two lawyers to partnership across employment and family

Foot Anstey—five promotions

Foot Anstey—five promotions

Firm promotes five lawyers to partnership across key growth areas

NEWS

NLJ this week: Divorce ‘nuclear weapon’ freezes assets but entangles outsiders

Freezing orders in divorce proceedings can unexpectedly ensnare third parties and disrupt businesses. In NLJ this week, Lucy James of Trowers & Hamlins explains how these orders—dubbed a ‘nuclear weapon’—preserve assets but can extend far beyond spouses to companies and business partners

NLJ this week: What counts as ‘rent’? Court says labour alone won’t do

A Court of Appeal ruling has clarified that ‘rent’ must be monetary—excluding tenants paid in labour from statutory protection. In this week's NLJ, James Naylor explains Garraway v Phillips, where a tenant worked two days a week instead of paying rent

Your magistrates’ court needs you!

Thousands more magistrates are to be recruited, under a major shake-up to speed up and expand the hiring process

NLJ this week: Freed but failed—justice system leaves the innocent empty-handed

Three men wrongly imprisoned for a combined 77 years have been released—yet received ‘not a penny’ in compensation, exposing deep flaws in the justice system. Writing in NLJ this week, Dr Jon Robins reports on Justin Plummer, Oliver Campbell and Peter Sullivan, whose convictions collapsed amid discredited forensics, ‘oppressive’ police interviews and unreliable ‘cell confessions’

NLJ this week: Clarity on whistleblowing, settlements and tribunal limits

A quiet month for employment cases still delivers key legal clarifications. In his latest Employment Law Brief for NLJ, Ian Smith reports that whistleblowing protection remains intact even where disclosures are partly self-serving, provided the worker reasonably believes they serve the ‘public interest’

back-to-top-scroll