Mrs A Collinson v Bespoke Health & Social Care Limited and 1 other — 2025

Mrs Collinson was employed by Bespoke as a support worker caring for Mr Bewlay. The preliminary issue was whether, when Bespoke stopped providing his care on 30 June 2024 and Mr Bewlay moved to a personal health budget direct payment from 1 July 2024, there was a service provision change under regulation 3(1)(b) TUPE so that her employment transferred to Mr Bewlay. The tribunal heard evidence about NHS continuing healthcare, personal health budgets and direct payments, and accepted that the day-to-day care tasks themselves remained materially the same throughout.

The tribunal held that before 30 June 2024 Bespoke was carrying out the relevant activities on behalf of the ICB, not on behalf of Mr Bewlay. It found that the ICB had the statutory duty to arrange continuing healthcare, that Mr Bewlay’s budget had been managed as a notional budget, and that although his preferences were taken into account he did not have a legal right to insist on a direct payment or to choose a provider. The tribunal rejected the suggestion that he was the real client or the decision-maker for commissioning purposes.

After 30 June 2024, the tribunal found that Mr Bewlay sourced, engaged and paid the self-employed carers on his own behalf, but that he did not carry out the wider management functions that Bespoke had performed. Because the client was not the same before and after the date, there was no service provision change under regulation 3(1)(b)(ii) or (iii). In the alternative, the tribunal found there was no organised grouping of employees with the principal purpose of performing the activities said to have transferred. The claims against the second respondent were dismissed, the automatic unfair dismissal claim under regulation 7 TUPE was dismissed, and the ordinary unfair dismissal and redundancy payment claims against Bespoke were left to proceed.