Claimant v Servacare (UK) Ltd and others — 2019

This was a remitted preliminary issue about whether there had been a TUPE transfer when Sevacare withdrew from Haringey in July 2016. The tribunal heard evidence from claimants and management witnesses, and applied TUPE regulation 3 and regulation 4 using the approach in Enterprise Management Services and the later guidance in Arch Initiatives. It identified the client as LB Haringey and considered the way Sevacare’s domiciliary care operation had been organised before the withdrawal.

The tribunal found that Sevacare’s Haringey work was a central care service for the borough, with carers assigned to multiple service users and organised through area coordinators rather than as teams around individual service users. After Sevacare gave notice, Haringey redistributed the 168 service users among four main providers and some smaller providers, largely by postcode and capacity. Although many claimants followed service users to new providers and some of the same service users were still being cared for, the tribunal held that the post-transfer picture was one of fragmentation rather than continuation of the same activity.

On the statutory tests, the tribunal concluded that the relevant activity was the provision of care to Haringey’s service users, not separate service-user based sub-activities. It found no deliberately formed organised grouping immediately before the change, and held that the claimants were not assigned to an organised grouping of employees that existed before the transfer. The tribunal also said the limited private work was not significant in the overall picture. It therefore held that there was no service provision change and no transfer of undertaking on the issue before it, so no monetary remedy arose in this judgment.