Did TUPE apply when commissioning services were transferred?

In Bicknell & BMA v NHS Nottingham and Nottinghamshire Integrated Commissioning Board, Mr. Bicknell was employed by a Clinical Commissioning Group (CCG). When the services of the CCG transferred to the Respondent, Mr. Bicknell’s employment was terminated. He claimed that his employment should have transferred to the Respondent under TUPE and that he had been automatically unfairly dismissed. His union, the second Claimant, brought claims in relation to failure to inform and consult.

The employment tribunal held that the transfer of Mr. Bicknell’s employment from a CCG to the Respondent was not a ‘relevant transfer’ under TUPE. TUPE only applies where there is a transfer of an economic entity carrying out economic activities. The tribunal followed the Employment Appeal Tribunal judgment in Nicholls v London Borough of Croydon and held that commissioning is not, in and of itself, an economic activity - the commissioner also needs to provide the goods or services on the market to be considered to be an ‘economic entity’. The CCG did not do this so was not an ‘economic entity’. 

The EAT had doubts about the judgment in Nicholls upon which the tribunal had based this decision, but did not find that it was ‘manifestly wrong’, as would be required for it to depart from a previous decision. The claims of both the first and second Claimant were dependent on a TUPE transfer having occurred. All claims failed.