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Care staff not transferred when new reduced service starts
Sally Cowen successfully represented the new care provider in this test of when staff TUPE to a new provider within the care industry. This will have impact on many re-tender situations in the care industry, where cutbacks are being made to the service provided.
The ET (Leicester) has decided that where a re-tender exercise for housing support services resulted in a different provider taking on the work, there was no ‘service provision change’ under Reg 3(2A) TUPE 2006.
C had been a support worker at a residence, providing support to disabled young people, living independently. She and her colleagues provided 24/7 support, including sleep in cover. They attended medical appointments and other trips out of the accommodation to introduce residents to the local area and support them in finding education, work and entertainment. They also helped them to become independent in their living accommodation. The contract accounted for 135 hours per week of support.
The new contract, offered under a separate name by the local authority, amounted to 28 hours per week. Whilst the aims of ensuring service users became more independent in their accommodation remained the same, the type and extent of work was severely curtailed.
The ET held that the service was ‘significantly different’ and therefore it did not amount to a service provision change. The ET followed Department of Education v Huke and another  UKEAT/0080 and Ward Hadaway Solicitors v Love and others  UKEAT 0471/09
The ET held that the provision of supplemental services to the individuals in the residence (on a separate contract) should be taken into account when calculating the number of hours in the new contract. This remains an issue which is not entirely clear from the authorities, ALHCO Group Ltd v Griffin and others  UKEAT 0007.
Kind v (1)Creative Support & (2) Dimensions ET 2600099/2015