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Adam Partington

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Ask the expert: TUPE and offers of employment

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Adam Partington and Esther Smith advise on whether a GP is protected under TUPE after the GP moved to another practice, which had then been transferred to a new employer.

 

The question

 
My question regards Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protection for a GP. This GP has recently been made an offer of employment with a GP practice and has continuous service recognised as part of normal NHS cover. The practice has subsequently been transferred to a new employer and the GP has assumed the contract she had with it. However she has been informed today that her contract is not protected under TUPE as it does not commence until after the transfer. Therefore her employment contract is nullified. Surely this is breach of contract and the protections under TUPE?
 

Legal advice

 

Adam Partington, solicitor, Speechly Bircham

 
It appears that the new employer is relying upon a gap between the date of the transfer of the undertaking or practice to the new employer, and the date upon which the GP’s employment will commence – to argue either that her employment does not transfer under the TUPE or that it does not do so on its existing terms and conditions. 
 
Assuming that the GP had agreed and accepted the offer of employment with the first GP practice and entered into a binding contract with this practice, then the terms of that contract of employment automatically transferred across to the new employer under TUPE on their existing terms and conditions, with continuity of employment preserved.
 
The contract was transferred immediately and without any gap – and if the new employer refuses to employ the GP then she will have been wrongfully dismissed. She will have a claim for damages for breach of contract equal to the net value of her notice period. Similarly, if the new employer has tried to postpone the commencement of her employment or refused to honour the existing terms, then the GP will have a claim for constructive wrongful dismissal, equal to the net value of her salary and benefits during the notice period. 
 
A dismissal for a reason connected with the transfer is automatically unfair, unless it is for an “economic, technical or organisational reason entailing changes in the workforce” (ETO), such as a redundancy. Whilst the GP only recently joined the first GP practice, if she has continuity of service of one year or more by virtue of her previous employment with the NHS, then she will have a claim for unfair dismissal in the Employment Tribunal.
 
Alternatively, the GP could choose to continue in employment with the new employer and reserve her position to pursue a claim for damages if she has not been paid for the “gap” between the transfer date and starting employment with the new employer. She will also be entitled to insist upon her previous terms and conditions of employment, unless the new employer dismisses her and re-engages her on new contract terms. Even then, the GP may still have a claim for unfair dismissal unless the reason for changing her contract is an ETO and the new employer has acted fairly and reasonably in a procedural sense in treating that reason as sufficient to dismiss.
This is a complex area of law so the GP would be advised to take specialist legal advice on these issues before taking any action.
 
Adam Partington can be contacted at [email protected]. For further information, please visit www.speechlys.com.
 
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Esther Smith, partner, Thomas Eggar

 
There are a number of issues arising here. The first is to ensure that the GP in question is actually an employee rather than a partner of the practice, as is often the case.
 
Assuming that their status is as an employee rather than a partner, TUPE only applies, generally speaking, to those people materially employed in the undertaking at the point of transfer. Therefore as she is not an employee at the point of transfer she would not necessarily be protected under TUPE.
 
However, this does not mean that her contract is “nullified”. If she has been offered a contract and accepted it, even if her employment has not started, then she should be entitled to notice of termination under the terms of that contract. 
 
 
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit www.thomaseggar.com.
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