Springhouse Solicitors

Residential to own-home care: TUPE does not apply

When Hillside House, a residential care home for vulnerable adults was closed, and residents re-housed into their own homes, 12 of Hillside’s former care workers brought Employment Tribunal claims for unfair dismissal and various salary related payments.

The Employment Appeal Tribunal had to decide who should pick up the bill. Should it be the care home (operated by Nottinghamshire Healthcare NHS Trust), or the private care providers (Perthyn and Choice Support)?

The answer depended on whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied. If they did, the contracts of employment would have automatically transferred so that liability would rest with the new in-home care providers.

The Employment Appeal Tribunal held that TUPE did not apply: there was simply not enough similarity in the provision of care once the change had been put into effect. Liability therefore rested with the Trust.

Good news for incoming in-home providers in these circumstances. They still need to bear in mind that their contractual arrangements with the outgoing providers (particularly if they are NHS), however, which may mean that they are still on the hook.