Ms S Abraham v NP Homecare LLP — 2018

Ms Abraham brought a claim of unfair dismissal against NP Homecare LLP. The respondent accepted that it had dismissed her, but said she did not have the qualifying service required to pursue an unfair dismissal complaint. The tribunal therefore heard a preliminary issue on whether there had been a relevant transfer under TUPE so that her service with Community Care Choice could count as continuous service.

The tribunal found that Ms Abraham had worked for Community Care Choice from 2015 as a support worker and had later worked mainly, and then solely, on the care package for JB. It accepted that JB's care moved from Community Care Choice to the respondent, but held that the relevant activity was the provision of care and support to service users generally, not a dedicated JB package. On that basis, the tribunal found there had been fragmentation of the work rather than a service provision change within regulation 3(1)(b) of the TUPE Regulations 2006.

The tribunal also found that there was no organised grouping of employees with the principal purpose of carrying out JB's care package. It relied on evidence that Community Care Choice did not assign dedicated teams to particular clients, that staff were allocated work according to training, need and availability, and that JB's weekly rota involved at least ten employees. Although Ms Abraham worked only with JB for a period, she could not herself constitute an organised grouping of employees in those circumstances.

In any event, the tribunal held that Ms Abraham was not employed immediately before any transfer. It found that her last shift with Community Care Choice was on 20 April 2017, Community Care Choice ceased the care package on 21 April 2017, Cordia provided care over the weekend of 22 and 23 April 2017, and the respondent began on 24 April 2017. The tribunal also found that Ms Abraham had resigned from Community Care Choice and knew she was leaving that employment, relying in particular on her text messages asking how her notice should be handled and confirming her last shift. The claim was dismissed because she did not have the necessary length of service to proceed with an unfair dismissal claim.