UK – TUPE Merger Of NHS Clinical Commissioning Groups Did Not Give Rise To Transfer.

UK – TUPE Merger Of NHS Clinical Commissioning Groups Did Not Give Rise To Transfer.

The EAT has recently considered whether the merger of several NHS clinical commissioning groups (CCGs) in the Nottinghamshire region amounted to a TUPE transfer.  Could these CCG’s, which were responsible for commissioning NHS services in the Nottinghamshire area, be said to be carrying out an ‘economic activity’?

B worked as clinical lead GP for a CCG in Nottinghamshire. In April 2020, the six CCGs in the Nottinghamshire region merged. B, who was dismissed following this merger, brought a claim arguing that this merger amounted to a TUPE transfer and that his dismissal was therefore automatically unfair. 

The employment tribunal dismissed B’s automatic unfair dismissal claim and held that there had not been a relevant TUPE transfer from B’s CCG employer to the newly merged CCG. In reaching that conclusion, the tribunal applied an earlier EAT judgment to the effect that public sector commissioning is not in itself an ‘economic activity’ for the purposes of TUPE, and in order to amount to an ‘economic activity’ the commissioner must also provide goods or services itself on the market (Nicholls -v- London Borough of Croydon [2019] ICR 542). B appealed challenging the tribunal’s application of the Nicholls decision and, in the alternative, asking the EAT to depart from that decision on the basis it was wrong. 

The EAT dismissed the appeal and held that: 

1. The tribunal had correctly understood and applied the Nicholls decision; and
    
2. The EAT could only allow the appeal and depart from the Nicholls decision if it considered it to be manifestly wrong. Whilst the EAT went on to express some doubts about the correctness of the Nicholls decision – in particular its reliance on principles established in an ECJ competition case and application of those principles in the employment sphere – it did not consider that the Nicholls decision was manifestly wrong and therefore the EAT declined to depart from it. The EAT held that ‘if the analysis in Nicholls is wrong, that needs to be corrected by the Court of Appeal’.  

In practical terms, pending any appeal, this leaves a degree of uncertainty about the application of TUPE for those involved in public sector commissioning.

Bicknell and another -v- NHS Nottingham and Nottinghamshire Integrated Commissioning Board [2024] EAT 103

For further information, please contact:

Emma Ahmed, Hill Dickinson

emma.ahmed@hilldickinson.com