Mansfield Care Limited v Leah Newman & Ors
[2024] EAT 128
Dr Marcul Bicknell & Anor v NHS Nottingham and Nottinghamshire Integrated Commissioning Board
25 June 2024
[2024] EAT 103
Employment Appeal Tribunal
A hospital doctor and the British Medical Association sued their NHS employer when their jobs were affected by a big NHS restructure. They argued their jobs should have been protected under TUPE rules. The court ruled that the NHS's activity was more like 'planning' than 'doing' and so TUPE protection did not apply because the NHS wasn't providing the healthcare services directly, it was only organising who would.
Key Facts
- •Dr Bicknell and the BMA appealed an Employment Tribunal decision dismissing their TUPE claims.
- •The claims arose from a reorganisation of NHS commissioning arrangements in Nottinghamshire.
- •The key issue was whether a relevant transfer under TUPE occurred from Dr Bicknell's employer (NC CCG) to NN CCG (predecessor to NN ICB).
- •The Employment Tribunal found no relevant transfer because NC CCG primarily commissioned services, not providing them itself on the market.
- •The appeal challenged the Tribunal's understanding of the 'economic activity' test in Nicholls v London Borough of Croydon [2019] ICR 542.
Legal Principles
Commissioning of goods or services is not in itself an economic activity for TUPE purposes unless the commissioner also provides those goods or services on the market.
Nicholls v London Borough of Croydon [2019] ICR 542, §42
To depart from a previous EAT decision, it must be manifestly wrong (British Gas Trading Ltd. v Lock [2016] 2 CMLR 40, §75).
British Gas Trading Ltd. v Lock [2016] 2 CMLR 40, §75
The definition of 'economic activity' for TUPE purposes is 'any activity consisting in offering goods and services on a given market'.
Various CJEU cases (summarized in §§92-96)
The 'indissociability' principle from FENIN v Commission of the European Communities (Case C-205/03) requires considering the downstream use of commissioned goods/services to determine if commissioning is an economic activity. However, the EAT confirmed that the commissioner must also supply goods or services to the market.
FENIN v Commission of the European Communities (Case C-205/03)
TUPE regulation 3(5) excludes administrative reorganisations of public authorities from being relevant transfers.
TUPE regulation 3(5)
Outcomes
Appeal dismissed.
The EAT upheld the Employment Tribunal's finding that no relevant TUPE transfer occurred. The Tribunal correctly applied Nicholls, finding that NC CCG's commissioning activities did not constitute an economic activity because it did not itself provide the services on the market, even though the EAT expressed some doubt as to whether Nicholls' reasoning should apply equally in the employment context and the competition law context of FENIN.