1. GMB Trade Union North West & Irish Region 2. Mrs S Jones 3. Mrs L Wallbank 4. Mr J Williams 5. Mrs J King 6. Ms C Abel 7. Miss E Lloyd 8. Mrs J Williams v Tarvin Court Ltd and 2 others — 2020

This was a preliminary hearing on whether there had been a TUPE transfer from Tarvin Court Ltd and/or Tarvin Estates LLP to Conifer Care Homes Ltd. The tribunal accepted that Dr Trehan of Conifers became involved in the running of Tarvin Court from November 2017 and that Conifers took over payroll from 1 January 2018, but it found those arrangements did not of themselves amount to a transfer of the undertaking. The tribunal treated the business as a nursing care home that depended on the Tarvin Court premises, equipment, staff and regulated CQC arrangements, and it found that Tarvin remained the registered provider and Debra Mahon remained registered manager until closure.

The tribunal rejected the argument that there had been a service provision change. It held that the relevant client was the individual service user, not the local authority or health authority, and that the service users contracted directly with Tarvin. On that basis, it found there was no contracting-out or change of contractor within regulation 3(1)(b) of TUPE. It also found no transfer under regulation 3(1)(a), 3(2) or 3(6), applying a holistic, multi-factorial approach and the guidance in Spijkers and Cheesman.

In the tribunal’s view, the parties had anticipated a sale and transfer if CQC approval was obtained, but that approval did not materialise and the anticipated purchase did not complete. The tribunal found the business came to an end when Tarvin Court closed on 23 March 2018, that no economic entity transferred to Conifers before or after that date, and that the later move of some residents and some staff to Oaklands did not amount to a transfer of Tarvin Court’s business. It therefore dismissed all claims against the third respondent and directed that the remaining claims against the first and second respondents be listed for a final hearing.