EAT criticises tribunal's approach to transferred public health staff

The Employment Appeal Tribunal has overturned an earlier ruling on whether the TUPE regulations applied to the jobs of public health staff at the London Borough of Croydon in a potential £1m dispute.

Appeals were brought by 14 people whose employment transferred in April 2013 from the Croydon Primary Care Trust to the London Borough of Croydon.  

In 2015 the council wanted to change their terms and conditions of employment, after which four resigned claiming constructive dismissal, six were sacked and accepted re-engagement on new terms and four were dismissed and did not accept this.

Mr Justice Lavender noted their claims had not been fully quantified, but for the 14 were expected to exceed £1m in aggregate.

He concluded in his judgment that the tribunal had accepted almost all of the work done by the team was also offered by non-state actors operating in the same market.

This should have shown their work was therefore an ‘economic activity’ for TUPE purposes, but the tribunal had not accepted this.

The judge said: “It seems to me that there is a significant and unexplained gap in the tribunal’s reasoning.

“The finding…that ‘all or almost of the work done by the Public Health Team can be, and in fact is, offered by non-state actors operating in the same market’ was on its face a strong indication that the public health team was carrying on an economic activity, especially in the context of the submissions made on this issue and on the related issue of the consideration given to the option of establishing the public health team as a social enterprise.    

“Having made that finding, it was incumbent on the Tribunal to explain its reasons for not drawing from that finding the conclusion that the team was carrying on an economic activity.  

“Otherwise, the Claimants have not been told why they have lost and this Tribunal cannot see whether the Employment Tribunal has or has not made an error of law in its reasoning.”

He also found that the UK has an obligation to give effect to the EU Acquired Rights Directive and that the original tribunal had failed to observe this.