Five care workers engaged in providing 24-hour care to a disabled woman were employed under ‘global’ contracts of employment and had the requisite continuity of employment to mount a claim under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), a tribunal has ruled.
Rejecting arguments that the carers had been employed under a series of individual contracts, covering individual assignments, shifts or rosters, the Employment Appeal Tribunal ruled that they had been required to work a certain number of hours each week and were obliged to carry out the work offered to them in relation to the woman’s critical care package.
The dispute arose after the company that formerly employed the carers had its contract to tend the woman terminated by the primary care trust (PCT) responsible for her care. The contract was awarded to another company which took on the five carers because it was considered desirable that the woman should continue to be cared for by personnel with whom she was familiar.
Judge David Richardson said that underlying the case was a dispute between the carers’ former and current employers as to whether their employment had been transferred from the former to the latter by virtue of TUPE.
The carers had signed a ‘zero hours contract agreement’ with their former employer which placed them under no obligation to work for any particular number of hours. The employer reserved the right to reduce the number of hours worked where necessary and did not preclude the carers from obtaining other work whilst unassigned.
However, Judge Richardson upheld an employment judge’s earlier ruling that the written agreement did not reflect the true position and that, in reality, the 24-hour nature of the woman’s care package meant that her carers had worked fixed and regular hours for substantial periods under global, or ‘umbrella’, contracts of employment.
The EAT dismissed an appeal brought by the carers’ former and current employers and the dispute will now go forward to a further hearing of TUPE and other liability issues.