Dr Marcus Bicknell (C1) The British Medical Association (C2) (a) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board — 2022

The tribunal found that NHS Nottingham City CCG’s core activity was commissioning healthcare services, not supplying goods or services on a market. Applying Regulation 3(5) TUPE and the functional approach in Nicholls, it held that the merger of the Nottinghamshire CCGs was an administrative reorganisation of public administrative authorities, so there was no relevant transfer when NC CCG was dissolved and its functions moved to NN CCG.

Because there was no relevant transfer, the automatic unfair dismissal claim under Regulation 7(1) TUPE and the alternative TUPE unfair dismissal claim under Regulations 7(2) and 7(3) failed. The tribunal nevertheless said that, if there had been a transfer, the dismissal would have been by reason of the transfer: it found the restructuring and selection process were aimed at reshaping the clinical lead structure for the new organisation, that Dr Bicknell was given notice on 27 November 2019, and that there had been no real redundancy consultation or fair process. On the alternative ETO case, it found no economic, technical or organisational reason entailing changes in the workforce.

The ordinary unfair dismissal claim under section 98 ERA 1996 succeeded. The tribunal found the dismissal procedurally unfair and held that the respondent had not shown a potentially fair reason for dismissal. It rejected the argument that Dr Bicknell would have been made redundant anyway, noting that three doctors continued to be employed as Clinical Leads in the new structure and that there was no evidence that, absent the merger planning, NC CCG would have stopped employing Clinical Leads in that way.

The breach of contract claim failed because the tribunal held that Dr Bicknell’s contractual redundancy entitlement was conditional, not outstanding on termination. A 28 January 2020 letter referred to a redundancy payment calculated at £16,000, but the tribunal held that this reflected the statutory payment already due and that any contractual payment depended on completion of the termination form. The BMA’s Regulation 13 TUPE claim also failed because, absent a relevant transfer, the duty to inform and consult did not arise; the tribunal said that if there had been a transfer, the pre-transfer restructuring measures would have been sufficient for the claim to succeed.