Cases→2406996/2023

Claimant v NHS Professionals Limited

16 May 2025Before Employment Judge EeleyManchesterremote video

Outcome

Claimant fails

Individual claims

Unlawful Deduction from Wagesfailed

The tribunal found no contractual or legal entitlement to payment for training under the respondent's terms. The claimants were not employed immediately before the alleged TUPE transfer (being between assignments at the moment of transfer), so TUPE protection did not apply. The express terms of the registration agreement with NHSP stated training was unpaid. Even if TUPE applied, breaks in continuity meant new unpaid training terms could be introduced before the dates of the claimed underpayments.

Facts

Two claimants worked as Healthcare Support Workers on a bank (casual) system, first for GMMH, then from February 2019 for the respondent NHSP. Each shift was a self-contained assignment creating a temporary contract of employment. Between assignments there was no employment relationship, only a registration framework. At GMMH, claimants were paid for classroom-based training; NHSP's terms stated training would be unpaid. The transfer occurred at midnight between 24-25 February 2019, between the claimants' shifts. Claimants sought payment for training attended under NHSP, arguing TUPE protected their previous entitlement.

Decision

The tribunal found no employment or worker contract existed between individual assignments — only a framework for registration. Neither claimant was employed 'immediately before' the TUPE transfer (as each was between shifts at midnight). Therefore TUPE did not protect them and their contracts did not transfer. Even if TUPE applied, subsequent breaks in continuity allowed NHSP to impose new (unpaid training) terms. The claims for unauthorised deduction of wages failed.

Practical note

Bank workers on genuinely casual, assignment-by-assignment contracts with no mutuality of obligation between shifts will not be 'employed immediately before' a TUPE transfer if the transfer occurs between assignments, and cannot claim TUPE protection for terms and conditions.

Legal authorities cited

Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497Clark v Oxfordshire Health Authority [1998] IRLR 125Carmichael v National Power plc [1999] ICR 1226Spence v Intype Libra Ltd [2007]Governing Body of Clifton Middle School v Askew [1999] ICR 286Albron Catering BV v FNV Bondgenoten [2011] ICR 373Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546

Statutes

Employment Rights Act 1996 s.210-213Directive 77/187/EECTUPE Regulations 2006Acquired Rights Directive 2001/23/ECEmployment Rights Act 1996 s.13

Case details

Case number
2406996/2023
Decision date
16 May 2025
Hearing type
full merits
Hearing days
5
Classification
contested

Respondent

Name
NHS Professionals Limited
Sector
healthcare
Represented
Yes
Rep type
barrister

Employment details

Role
Healthcare Support Worker

Claimant representation

Represented
No
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