Only staff members who can be clearly identified as providing the transferred service are protected. The question of when exactly tupe applies and when it does not apply can be very complex. If you believe that a transaction in which you are involved could be covered by TUPE, you should always seek specialized legal advice. TUPE will be taken into account in virtually all changes in service delivery, such as outsourcing and insourcing. Tupe cannot always be expected to be applied, as it depends on a number of issues, including whether: Sevacare had a contract with the London Borough of Haringey to provide for the needs of the people of the district. Sevacare`s Homecare Support Assistants provided care to adults in their homes as part of contract care packages for 168 service users. Nurses were asked to provide specific care and were assigned to service users and transferred to the rotation maintained by Sevacare. This clearly reminds us that there may be a problem in seeking a change in the provision of the service if the work of an outgoing supplier is randomly assigned to a panel of new or existing suppliers. Workers were typically assigned to individual users to ensure continuity of care, confidence, and efficiency of care.
Sevacare rarely gave business to the haringey team of instructors outside Haringey Borough. Nor was the judge entitled to know whether there was an organised group of workers in Sevacare`s employment. The first court had held that there was an organised grouping, since the main objective of the activity was to ensure the supply of users of services for which the Council is responsible. However, this is only the point of agreement of the assignor (outgoing contractor). It will be interesting to see how much the outgoing contractor will give his competitor (who has just taken over the contract from him) the access of his collaborators for consulting purposes before the end of the contract! It is hard to imagine that this will be easier in practice with regard to changes in service delivery. The TUPE rules preserve the general conditions of workers when an enterprise or part of an enterprise is transferred to a new employer. Any provision of an agreement (whether or not it is a contract of employment) is void to the extent that it would exclude or limit the rights granted under the rules. Asylum seekers supported by Clearsprings were randomly assigned to arriving contractors.
The EAT found that due to their uninly reassignment to several suppliers, the activities were so fragmented that the rules on service delivery were not included. It performed the duties of vigilance to determine which caregivers were assigned to which service users, in accordance with the rosters established before the handover for a period of six weeks. . . .