EAT rules no TUPE transfer after Nursing & Midwifery Council legal panel review

The Employment Appeal Tribunal has upheld a ruling that there was no service provision change and therefore no TUPE transfer when the Nursing & Midwifery Council held a competitive tender for regulatory advice and awarded a contract to a different law firm.

North-East firm Ward Hadaway was one of four firms on the NMC’s panel until 2007, when the council put the work out to tender.

The NMC then selected Capsticks as its sole provider and brought a large amount of work in-house. Ward Hadaway nevertheless continued to handle work on between 100 and 140 existing cases.

Ward Hadaway claimed that there was a “service provision change” under the Transfer of Undertakings (Protection of Employment) Regulations 2006. However, this was rejected by the Employment Tribunal, which ruled that nothing had transferred to Capsticks on or after 1 October 2007 when it took on the contract. The NMC was also under no obligation to allocate work to Ward Hadaway.

The tribunal said only work in progress – and not the expectation of future work – could constitute activities for the purpose of the 2006 regulations. It highlighted the fact that Ward Hadaway’s team continued to work on existing NMC cases, which were enough to keep them fully occupied for potentially six months. As a result the 2006 regulations did not apply.

The tribunal had also ruled that the legal work conducted by Ward Hadaway was not the same as that carried out by Capsticks.

The EAT upheld the tribunal’s decision, saying that it “cannot be faulted in its clear decision that the activities for the purposes of a service provision change were the work in progress”.

The EAT also said the tribunal therefore did not need to consider anything further, but its judgement on the nature of the two firms’ work was “a permissible decision” and “seems to us to be correct”.