Cases→1806415/2024

Claimant v Bespoke Health & Social Care Limited

17 June 2025Before Employment Judge BuckleyLeedsremote video

Outcome

Other

Individual claims

Automatic Unfair Dismissaldismissed on withdrawal

Claim for automatic unfair dismissal under regulation 7 of TUPE dismissed because the tribunal found there was no service provision change and therefore no TUPE transfer.

Unfair Dismissalnot determined

The unfair dismissal claim against the first respondent continues and will be listed for a full hearing. The preliminary issue determined that there was no TUPE transfer, meaning the first respondent remains the employer.

Redundancy Paynot determined

The redundancy payment claim against the first respondent continues and will be listed for a full hearing. The preliminary issue determined that there was no TUPE transfer.

Facts

Mrs Collinson was employed by Bespoke as a support worker caring for Mr Bewlay, a severely disabled individual receiving NHS Continuing Healthcare funded 24/7 care. From 2020 to 30 June 2024, Bespoke provided Mr Bewlay's care funded via a notional personal health budget managed by the ICB. From 1 July 2024, the ICB agreed to manage the personal health budget by direct payment, and Mr Bewlay engaged self-employed carers directly. Mrs Collinson lost her job. Bespoke said her employment transferred under TUPE to Mr Bewlay. Mr Bewlay denied this.

Decision

The tribunal held there was no service provision change under TUPE Regulation 3(1)(b) because the client was different before and after 30 June 2024. Before, Bespoke carried out activities on behalf of the ICB pursuant to its statutory duty to arrange NHS Continuing Healthcare. After, Mr Bewlay sourced and engaged carers on his own behalf under a direct payment arrangement. The claims against Mr Bewlay were dismissed. The unfair dismissal and redundancy claims against Bespoke continue.

Practical note

A change from ICB-commissioned care provider to patient-managed direct payment arrangement does not constitute a TUPE service provision change because the 'client' differs: the ICB arranging care pursuant to statutory duty versus the patient sourcing care on their own behalf.

Legal authorities cited

Eddie Stobart Ltd v Moreman [2012] ICR 919Ottimo Property Services Ltd v Duncan [2015] IRLR 806 EATJinks v London Borough of Havering UKEAT/0157/14/MCHorizon Security Services v Ndeze UKEAT/0071/14CT Plus (Yorkshire) CIC v Black and others UKEAT/0035/16/DMNottinghamshire Healthcare NHS Trust v Hamshaw UKEAT/0037/11/JOJArch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and ors [2016] ICR 606 EATMetropolitan Resources Limited v Churchill Dulwich and ors [2009] ICR 1380 EATCeva Freight (UK) Limited v Seawell Limited [2013] CSIH 59Mansfield Care Ltd v Newman and ors and Rollandene Ltd v Newman and ors [2024] EAT 128McCarrick v Hunter [2012] EWCA Civ 1399

Statutes

Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) Regulation 3(1)(b)TUPE Regulation 3(3)TUPE Regulation 7Interpretation Act 1978 s.6National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Regulation 32BNational Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Regulation 32ANational Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Regulation 21National Health Service (Direct Payments) Regulations 2013National Health Service Act 2006 s.3(1)(c)

Case details

Case number
1806415/2024
Decision date
17 June 2025
Hearing type
preliminary
Hearing days
2
Classification
contested

Respondent

Name
Bespoke Health & Social Care Limited
Sector
healthcare
Represented
Yes
Rep type
barrister

Employment details

Role
Support worker
Service
7 years

Claimant representation

Represented
No
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