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no TUPE transfer for changes in care provision

22 July 2011

The EAT has decided that there was no TUPE transfer where residents of a care home were discharged home from the care of an NHS Trust, and who received support from two independent service providers who help residents live independently in their own homes. This contrasted with the care provided previously by the trust, where tasks were carried out on the residents’ behalf.

The EAT held that there could be no relevant transfer or service provision change under TUPE because the economic entity did not retain its identity after the transfer. There was a move from ‘institution’ to home and from ‘management’ to ‘support’ so that the services provided to the residents were not ‘fundamentally or essentially the same’ after the change in provider.

But where exactly is the distinction to be drawn between those care services provided before and after the transfer, so as to prevent TUPE applying? In a different factual scenario, that might be a difficult question to answer.

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