Policy News Journal - 2011-2012

A question which was referred to the ECJ was whether cost alone can justify discrimination (in the UK, we currently have the controversial 'costs plus' justification). Unfortunately, the ECJ did not deal with this point.

TUPE SERVICE PROVISION CHANGEOVERS

27 July 2011 This case concerned a care home which closed and the residents were re-housed into homes of their own. This issue was regarding the care of the residents, which was

transferred to two new independent providers. Daniel Barnett’s Employment Law Bulletin reports:

The EAT (Bean J) has handed down its decision in Nottinghamshire Healthcare NHS Trust v Hamshaw and others (EAT/0037/11), which is authority for the proposition that there cannot be a relevant transfer under TUPE, either by way of a transfer of an undertaking under reg 3(1)(a), or a service provision change under reg 3(1)(b), where the services provided to a client are not fundamentally or essentially the same as they were before the change of provider. In this case Nottinghamshire Healthcare NHS Trust ran a care home. This was then closed and residents re-housed into homes of their own. Their care was transferred to two new independent providers. A number of care workers in the former home were offered jobs with the new providers. The Trust considered TUPE applied. The providers said it did not. The EAT (upholding the employment tribunal decision) held there was no TUPE transfer. There was neither a transfer of an economic entity retaining its identity (reg 3(1)(a)) nor a service provision change (reg 3(1)(b)). Under the new arrangements former residents were to live in their own flat. The care provided was different. The individual care user was to be helped autonomously to undertake domestic tasks and all the paraphernalia of a fully staffed care home was not available. The economic entity had lost its identity. And even the seemingly wider definition of a relevant transfer by way of service provision change could not apply where the activity carried on by the new provider was not "fundamentally" or "essentially" (per Judge Burke QC in Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] IRLR 700) the same as the service provided before the change. 27 July 2011 A CIPP News item on 3 May 2011 gave details about the case of KHS AG v Winifried Schulte being heard by The Court of Justice of the European Union (CJEU) . The case was to determine whether a worker's annual leave entitlement can expire at the end of a holiday year or specified carry over period if it is not taken, even if that worker has been sick and therefore absent from work therefore accruing several years' holiday entitlement. Advocate General Trstenjak has ruled that 18 months is a reasonable time to carry over leave which could not be taken due to sickness absence. This gives the worker up to two and a half years to take the minimum annual leave for a given leave year. The period of 18 months represents a guideline which the Member States should follow as far as possible when implementing domestic law. This is very timely as HM Government is currently consulting on its proposals for annual leave interacting with sick leave. It should be borne in mind that this is simply the Advocate General’s opinion and is not yet binding as an Advocate General’s role is to provide the court with a legal solution for its SICKNESS AND ACCRUED ANNUAL LEAVE

CIPP Policy News Journal

09/10/2012, Page 42 of 234

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