Ms Melanie Tether, Counsel For the Unite Claimants: Mr Darryl Hutcheon, Counsel For the v Respondent — 2017

The tribunal, sitting before Employment Judge Hall-Smith alone, determined a preliminary issue for the joined Croydon public health cases. It held that the transfer of the Claimants' employment from Croydon PCT to the London Borough of Croydon on 1 April 2013 did not amount to a relevant transfer under TUPE. The tribunal accepted the statutory background that public health functions moved from PCTs to local authorities under the Health and Social Care Act 2012, and it accepted evidence that the Public Health Team undertook commissioning, research, strategic advice and related work. However, it concluded that the overarching role of the team remained the state's responsibility for public health and that the transfer fell within regulation 3(5) as an administrative reorganisation of public administrative authorities, or a transfer of administrative functions between such authorities.

In reaching that conclusion the tribunal referred to the Henke exception and considered authorities including FENIN, Scattolon, Bettercare and Diego Cali. It rejected the claimants' submission that the commissioning aspects of the team's work made the transfer economic rather than administrative. It also rejected the argument that the Croydon Staff Transfer Scheme should be disapplied to preserve TUPE protection under regulation 4. The tribunal held that regulation 4 already contemplates situations where TUPE does not apply, and in any event the scheme had preserved the Claimants' employment rather than terminating it. No monetary remedy or award was made.