Mr L Braiden and Mr F Ubege v NHS Professionals Ltd: 2406996/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 2406996/2023, 2411285/2023, 2404439/2024
Between
Mr L Braiden and Mr F UbegeClaimantNHS Professionals LtdRespondent
Before
Employment Judge EeleyIn person for claimantMs K Nowell (instructed by Counsel) for respondentDate 16 May 2025
JUDGMENT
Both claimants’ claims for unauthorised deductions from wages in respect of payment for training are not well founded and are dismissed. Approved by: JUDGMENT having been sent to the parties on 13 June 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimants both work as Healthcare Support Workers and are bank workers for the respondent. They pursue claims for unauthorised deductions from wages. They claim payment for training which they attended in relation to their work for the respondent. The updated list of issues for determination by the Tribunal was at page 165 of the hearing bundle.[2]For the purposes of determining this case I received written and oral witness evidence from:a. Mr Lee Braiden, claimantb. Mr Felix Ubege, claimant.c. Ms Eleanor Rhodes, Head of Employee Relations for the respondent. There was an agreed hearing bundle containing 419 pages and a supplementary hearing bundle consisting of 18 pages (which was provided by Mr Braiden on the first day of the hearing). I read those pages to which I was directed by the parties. Numbers in square brackets below are references to pages within the main bundle. Where there are references to the supplementary bundle, this is specified. In the reasons which follow Greater Manchester Mental Health NHS Foundation Trust is referred to as “GMMH” and the respondent as “NHSP” or the respondent.[3]I had the benefit of written and oral submissions on behalf of all parties, for which I was grateful. I also received copies of various pieces of case law, both first instance and appellate.
The Facts
[4]Both claimants worked for the respondent as Healthcare Support Workers. Mr Ubege has worked in that role since 3 November 2014, Mr Braiden in the role since 5 September 2011. They previously worked for GMMH in the same role. They work on a bank system. They claim unauthorised deductions from wages as they say they were entitled to be paid for attending classroom based training with the respondent. Both of the claimants in this case still work for the respondent in this role via the bank system.[5]The case arises from a transfer between GMMH and the respondent. (I am using the word ‘transfer’ here in a non-technical sense and not to indicate that there was a TUPE transfer). The transfer took place at midnight on 25 February 2019. Up to and including 24 February 2019, GMMH organised its own bank of Healthcare Support Workers. It effectively did that task ‘in house.’ From midnight at the start of 25 February 2019 onwards, the organisation and supply of bank workers for GMMH was effectively outsourced to NHSP. NHSP provides similar services to over fifty NHS Trusts across the country.[6]I considered, first of all, the documents that were available in relation to the situation before the transfer, which is to say GMMH’s documents. The first key document is GMMH’s “Central Nurse Bank Terms of Registration- Effective 1st April 2011” (which is the version which was signed by Mr Braiden on 25 March 2011.) The salient parts of that document commence at [219]. It defines ‘Bank Workers’ as being individuals who are approved to work for the Trust on a casual basis for short periods of time. It emphasises that there is no ‘mutuality of obligation,’ which is to say that there is no obligation on the Trust to offer work to Bank Workers and no corresponding obligation on the workers themselves to accept work from the Trust. It also emphasises that there is no contract of employment but it goes on to state, “although from a duty of care perspective you will be classed as an ‘employee’ for the duration of each assignment (often referred to as a shift), as each one ends the employment relationship also ends, so there is no on-going employment relationship between the Trust and Bank Workers.” The document also states that there is no employment relationship between the assignments so that when the assignment ends so does the relationship and the accompanying duty of care. The document contains a clause relating to withdrawal. It states that, as there was no mutuality of obligation, GMMH reserved the right to withdraw the claimant’s registration at any time and without notice. On the other side, the claimant could also terminate registration at any time, without notice.[7]Subsequent clauses in the document indicate that a worker could be required to make reasonable changes of location for assignments they undertook, even once they had reported for duty. If they refused to make such location changes when asked to do so, they were treated as cancelling the assignment and would only be paid for the period of time worked up until the point of the notional cancellation. Cancellations by workers would be monitored and repeated cancellations or failures to attend without a reasonable background might result in ‘de-registration’ from the bank [222]. The clause dealing with cancellations by GMMH confirms that the worker would not be paid for cancelled or withdrawn assignments up to the point of reporting for duty on the assignment. If no prior notice was given and the worker reported for the assignment, the Trust would try to find an alternative assignment. If the worker refused a reasonable alternative assignment in such circumstances, there would be no payment. If the Trust could find no alternative assignment, then GMMH would pay the worker for two hours of work.[8]The document underlines the fact that GMMH had the right not to offer the claimant work and the claimant had the right to refuse to accept any work which was offered. If the worker wanted to leave the bank, then they had to give written confirmation of termination/withdrawal from the bank but they were not required to give a notice period for such withdrawal [224]. That is to say, they could withdraw from the bank with immediate effect but needed to do it in writing. On the other side of the relationship, GMMH could also terminate the worker’s registration with the bank. The document gives examples where this would happen. This included circumstances where the worker had not undertaken any work on the bank for a period of 6 months or where the Trust considered the worker to be in breach of the required standards of conduct.[9]That is the foundation document for the bank system operated by GMMH.[10]There is a subsequent letter dated 30 December 2015 [339.] It sets out a list of mandatory training that workers on the bank, working under the registration agreement, would have to complete. It indicates that online mandatory training would not qualify for payment [340]. The document lists some classroom based training including Fire Safety; Prevention & Management of Violence & Aggression (hereafter “PVMA”); Basic Life Support (hereafter “BLS”); and Immediate Life Support (“ILS”). The document confirms that a worker would be paid for attending that classroom based training.[11]There is a later version of the terms of registration with GMMH dated 2017 starting at [177]. There is no real material difference between the terms of that document and the earlier version but it is notable insofar as this is the version of the document that Mr Ubege signed up to when he transferred to GMMH from another Trust. This version has the same terms regarding mutuality of obligation. It reiterates the position that there was no employee status but that the Trust owed a duty of care like that of an employer. It indicates that there was no subsisting relationship between the parties in between assignments and that no notice period was required for withdrawal. It contains the same information about cancellations and payments for part shifts. There is reference to mandatory training and it is silent as to whether the worker would be paid for completing such training.[12]Thus it can be seen that the actual written terms and conditions from 2011 and 2017 were silent as to whether the claimants would be paid for completing the training. Those terms and conditions documents for registration on the bank are separate and distinct in nature from the letter dated 30 December 2015.[13]In his evidence, Mr Ubege said that the contract document was silent in relation to payment for training but he was, in fact, always paid for classroom based training during his time with GMMH. This meant that he was paid for PVMA and BLS when he worked for GMMH.[14]Alongside the documents already described there is a temporary work handbook titled “Temporary Resourcing Handbook” [227]. The relevant excerpts of that are at paragraph 1.2. It refers to the benefits of flexible working. It also refers to staff being able to use the Trust’s own online platform (which was given the acronym EOL for short) to book and manage the work. Paragraph 2.1 states that workers are not employees, they are registered members only and do not have employment rights. This is said to be due to neither party having mutuality of obligation: “The Trust is under no obligation to offer you Assignments and as registered members you are under no obligation to accept Assignments offered, this enables flexibility on both sides.” Paragraph 2.6 refers to cancellations and the possibility of de-registering the worker from the Bank if there is an unacceptable record of cancellations. Section 3 [231] shows the practicalities of how the system operated and how bookings would be made. It also refers to SMS alerts if shifts remained unfilled and it looks as though workers could provide their availability in advance so that the Trust would contact them to offer shifts. There is also provision for the system to work the other way around i.e. the Trust would upload available shifts to the system so that workers could sign up for the shifts that they wanted. The document deals with payments for shifts cancelled by the worker or by GMMH [232]. (No payment for cancellations by the worker, two hours’ payment for cancellations by the Trust where no suitable alternative work is found.)[15]Those are the documents which relate to the period prior to the transfer to NHSP in February 2019. I have been shown a consultation document which relates to the proposed transfer to NHSP [264]. It states that the Trust was proposing to transfer bank workers engaged on the Trust’s own internal bank to NHSP under the Cabinet Office Statement of Practice (hereafter referred to as “COSOP”) It states, “Although the transfer is not considered to be a ‘relevant transfer’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended), COSoP ensures that the transfer is managed as if it were covered under the Transfer of Undertakings legislation (TUPE).” This is a statement that GMMH does not think that TUPE applies but it is, in effect, going to behave ‘as if’ TUPE applied. This is in pursuance of COSOP.[16]Eligibility is dealt with at [265] and it says the following: “The Trust will identify those workers/roles who are eligible (in scope) to transfer to NHSP under TUPE/COSoP. The criteria for eligibility will be any workers who have an active bank post at the date of transfer (an ‘active bank worker’ will be any worker who has undertaken a bank assignment in the 6 month period prior to the transfer date, and includes those workers on maternity leave, excluded from the bank or on long term sick leave who may not have undertaken a shift in the previous six months.)” In a lot of ways I can see there that there is a departure from the strict terms of TUPE because this arrangement is covering everyone who has worked on the bank in the last six months. It does not match the typical TUPE situation where one looks at the workforce at the point of transfer. That is something I will return to later in my conclusions.[17]Paragraph 5 at [265] is titled “Legal, economic and social implications of the proposed transfer for the affected employees”. It states that NHSP will take on the responsibility of the management of the Trust’s bank and, as a result, those who are ‘in scope’ to transfer to NHSP under COSOP/TUPE. Those who are partly assigned (with a bank post) will have their bank post transferred to NHSP under TUPE/COSOP. It continues, “The terms that bank workers currently have associated with their registration to the GMMH bank will transfer to NHSP. Any changes that NHSP may be seeking to make, which may change the terms of registration of bank workers are known as “measures.” NHSP have confirmed the measures they are intending to take, more details can be found below and in Appendix 2.” This indicates an intention that, if the worker transfers under COSOP, their terms and conditions will stay the same unless otherwise stated in the proposed “measures” in Appendix 2 etc.[18]Consequently, I have to read across into Appendix 2 [268 – 270]. On the issue of training it states [270] “Bank Only Workers – Flexible workers are required to undertake learning and development activities required for their roles, including refresher training. NHSP provide access to a range of classroom based and online training activities to support Flexible Workers to do this. Workers are not paid for completing any online mandatory training or attending any classroom training that is required as part of their role.” A straightforward reading of this document shows that there was an intention to make a change to the relationship regarding payment for training so that there would be no paid training after the transfer to NHSP.[19]On balance, I find that both claimants were, in fact, sent these consultation documents and the subsequent FAQs (which I will come on to in a moment.) They may not recall reading them all at the time but I am satisfied that they were sent to them. I note that Mr Braiden, in particular, knew enough about the consultation process to attend a ‘meet and greet’ meeting and to fill out a TUPE form. The information informing him of that arrangement is likely to have come from this document and the associated consultation FAQs. I also note that, if either claimant received one of the later documents, this would alert him to the existence of the other documents. For example, version 2 of the FAQs would imply the existence and availability of a first set of FAQs. I conclude that if the claimants did not read everything that was sent to them, that is not something that the respondent can be held responsible for. The respondent has discharged its duty by sending the information out to them.[20]I also find that the claimants may have got the impression that TUPE applied because of the wording used in the documents. Even though the documents do not actually say that TUPE applies in this scenario, stating an intention to treat the claimants “as if TUPE applies” could easily confuse the non-lawyer. Also, the repeated use of TUPE terminology in various documents could be interpreted by a lay person (i.e. a non-lawyer) as a concession that TUPE did, in fact, apply. However, this would be a misunderstanding of the true situation. The respondent made no such concession at the time. Importantly, the question as to whether TUPE applies or not is a question of law. It is not something that the parties themselves can definitively agree or concede. I am satisfied that “TUPE” was used as a convenient shorthand to refer to the transfer situation but the transfer situation was, in fact, being dealt with by applying COSOP principles. COSOP is not as well known to workforces as TUPE. It was, therefore, easier for NHSP and GMMH to use the terminology of TUPE even though they did not concede that the TUPE legislation applied in the circumstances of this case. However, the fact is that wherever the documents in question set out an explanation, they made it clear that TUPE did not apply as a matter of law but NHSP and GMMH were choosing to apply the spirit of TUPE in order to ensure that the whole of the existing workforce was taken on by NHSP after the transfer. Hence the reference to COSOP. It is a way of following the spirit of TUPE within a public sector context in order to facilitate a transfer. However, the fact that the documents specifically refer to ‘changes’ (in the measures document and in Appendix 2) shows that GMMH and NHSP did not consider themselves bound by TUPE as a matter of law because they were already specifically setting out an intention to depart from the previous terms and conditions in a way which might not be permissible under TUPE. It would be ‘contracting out of’ the statutory protection provided by TUPE.[21]I move on now to the FAQ documents. The first of these is at page 311. Again, it reiterates that this transfer is being treated ‘as if’ it were a TUPE transfer even though it is not actually a TUPE transfer in law. It states, “The Trust is proposing to transfer bank workers engaged on the Trust’s internal bank to NHS Professionals under the Cabinet Office Statement of Practice (COSOP)- Staff Transfers in the Public Sector (2000, revised December 2013.) Although the transfer is not considered to be a “relevant transfer” under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended), COSOP ensures that the transfer is managed as if it were covered under the Transfer of Undertakings legislation (TUPE.)” It goes on to say and reiterate what is said about the changes to terms and conditions and it says, “TUPE/COSoP protects elements of the terms of registration, therefore the new organisation should not change them. However, there are some circumstances under which the new organisation may be entitled to make changes. Any changes that we are currently aware of are contained within the ‘Measures’ section of the consultation document. If NHSP notify GMMH of any additional changes we will ensure you are informed without delay. They may choose to inform you directly but we would expect them to notify us first if they wish to pass on any information to you directly.”[22]There are then some further pieces of correspondence. There is a letter from GMMH on 25 January 2019 [315] which notifies workers of their right to object. More importantly, for the purposes of this case, there is a further letter on the 25 January 2019 [319]. This letter refers to the feedback provided during consultation (particularly in relation to pay for classroom based training) and it continues, “As a result of this feedback, payment of shifts cancelled at short notice and payment for classroom based courses are currently being considered by the Trust’s NHSP Implementation Project Groups. Further information will be available when discussions have concluded.” I pause to note that, as of 25 January (about a month before the transfer) it was still under discussion.[23]Version 2 of the FAQs deals [322] with whether bank workers will be paid for attending training [327]. It states that both the Trust and NHSP do not pay for completion of online training, NHSP do not currently pay workers for attendance at classroom training, the Trust and NHSP are currently discussing payment for attendance at classroom based training and more information will be available once a discussion has been reached. Again, it sets out the (then) current position and indicates that it is still under discussion. The ‘Measures’ document [330] states, “Workers are not paid for completing any online mandatory training or attending any classroom training that is required as part of their role.”[24]I have been shown an email that was sent to Mr Braiden on 22 February, shortly before the transfer [348]. The page is a screenshot of an email with additional FAQs in the body of the email. In relation to classroom based training it states: “The Trust and NHSP are reviewing the training requirements for Bank Only Workers. As a minimum Bank Only Workers will be required to attend NHSP’s half day classroom based mandatory training, which comprises BLS, Infection Prevention, Moving and Handling and Fire Safety, in addition to a one day classroom based Breakaway Training. Bank Only Workers will be paid for attendance at these two classroom based training courses. Once discussions regarding other types of classroom training have been concluded, NHSP will advise Bank Workers if they are required to attend further training, and any pay arrangements for these.”[25]Mr Braiden accepted (and I heard evidence) that he was paid for this one and a half days’ worth of training but he was not paid for anything thereafter. The respondent says that this was the only entitlement to paid training post transfer: one and a half days’ worth of training on these specific topics. Mr Braiden accepted that when similar training was done in January 2022, he was told that he would not be paid for it and he did not receive payment for it. The evidence that I have read and heard seems to suggest that this was a one-off agreement to pay for those specified courses in that particular training year rather than an ongoing agreement to pay for this training on an ongoing basis. If a change to give an ongoing entitlement to payment for these types of training on an ongoing basis had been intended, I would have expected to see a further document thereafter to amend the contractual documents. This is particularly so given that the rest of the documentation, on the face of it, indicates that training will be unpaid after the transfer. No formal amendment was made to indicate a change to the contractual entitlements as opposed to a one-off payment. The natural reading of the email better supports this interpretation, that there is to be a one-off payment for this specific training on this specific occasion.[26]The Flexible Worker Registration Agreement to be used with NHSP [185] was signed by both claimants. At paragraph 1.1 the document makes it clear that there is a choice on both sides of the relationship: there is no obligation to offer assignments and no obligation to accept assignments which are offered. In contrast to GMMH, NHSP conceded that it would be the claimant’s employer during the duration of the assignments which were worked. There would be an employment relationship during the course of the assignments. However, paragraph 1.3 says that each assignment is self-contained so that the obligations between the parties under the contract of employment end with the assignment. There is no obligation to offer work or to accept work after the assignment is completed. It states, “Upon the completion of any Assignment you will no longer be an employee of NHSP. You agree that you are deemed to be served notice to terminate the employment created by each Assignment at the start of an Assignment and you agree to waive any right to a longer notice period (subject to the provisions of paragraph 3)”.[27]Paragraph 2.1 defines an assignment as an individual shift during which the worker is engaged by NHSP. It states: “For example, if you book ten shifts on the online booking system at the same time, you will have booked ten separate assignments, regardless of the fact that they were booked all at once.” Paragraph3.1 states that, provided that the worker is not carrying out an assignment, either the worker or NHSP may decide at any time without notice to end the worker’s availability to work with NHSP under the registration agreement. It provides that any such notification must be given in writing. Again, no warning or notice period needs to be given notification must be confirmed in writing. Paragraph3.2 confirms that, the end of each such assignment, means that the individual is no longer an employee of NHSP.[28]Paragraph 7 deals with issues of continuous employment. At paragraph7.1 it refers to Section 210 of the Employment Rights Act 1996 and records that continuous employment should be from the start of any single assignment worked and is only continuous for the duration of that assignment. Paragraph7.2 states that any previous employment with NHSP or other employers will not count as continuous service for the purposes of the terms of the registration agreement. Paragraph 10.3 records that if an individual wants to take more than the statutory holiday entitlement, they need only choose not to work and not to book an assignment in order to get the desired time off.[29]Crucially, under the heading of Provision of Training. Paragraph 16 states: “It is your responsibility to ensure that you maintain and develop your competencies in the fields in which you practice. You have an ongoing duty to undertake learning and development activities, including mandatory training, refresher activities, for the purposes of your continuing professional development. You acknowledge that NHSP reserves the right to refuse to offer any Assignment to you or to cancel an Assignment which has been offered to you if it considers it necessary for you to undertake learning and development activities to ensure that you can effectively and safely carry out your duties.” Again, I pause to note that this particular document says nothing about the individual being paid or unpaid for training. Paragraph 27 deals with engagement and employment with other providers. A review of the paragraph shows that it is intended to avoid workers being provided as bank workers to NHSP’s clients without going via NHSP.[30]The claimants in this case during the course of their evidence said, in effect, that notwithstanding the fact that they were asked to sign new terms and conditions before the transfer, they were reassured that nothing, in reality, would change. Whilst they may have been reassured by this, it does not override the fact that each claimant signed the terms and conditions and knew that they were doing so. An implied reassurance from an, as yet unidentified, individual cannot override the express written terms of the new agreement which the claimants have chosen to sign. This is underlined by the concluding paragraphs of the agreement which are just above the signature section (paragraphs36.1 to 36.3.) They state, “36.1 You acknowledge and agree that this document is a registration agreement between you and NHSP and supersedes all other agreements between you.36.2 By agreeing to sign your name at the bottom of this registration agreement and/or continuing to book assignments with NHSP you are agreeing to be bound by the terms of the registration agreement.36.3 The registration agreement will have legal effect and you are urged to carefully read, consider and ensure that you understand its terms before signing your name.” Mr Braiden, in particular, suggested that implied terms meant that everything stayed the same. However, an Employment Tribunal needs to see particularly cogent evidence to find that an implied term supersedes an express term of a contract.[31]Finally, I was referred to pages 14 and 15 of the supplemental bundle. This is an NHSP email saying that if the individual was working at GMMH, PVMA training was needed. It stated that this was organised by the Trust. It confirmed that individuals should contact GMMH as NHSP could not book this training for the worker. The evidence was that this training was funded and provided by GMMH. Hence NHSP did not arrange the bookings. The evidence from both claimants on this issue was that GMMH did continue to provide this training and they had to contact the ward managers in order to get booked onto it. They indicated that ward managers would allocate the training places to those individuals who did a lot of work for their particular ward. This was part of them having control over their own budgets. There may well have been difficulties in getting signed up for that training via the Trust depending on availability and the attitudes of different ward managers. However, the claimants did seem to accept that this PVMA training was not within the scope of the respondent’s activities or training provision. It effectively stayed with GMMH, even after the transfer.[32]I also heard evidence that there were new online systems with the respondent. As well as being a way of facilitating bookings for shifts and assignments, the online portal was also a way of releasing payments to workers. There was also evidence from the respondent that there was an onsite office provided by the respondent. The surrounding evidence suggested that maybe one employee transferred from the GMMH ‘CMB office’ to the respondent’s office. The rest of the people staffing the respondent’s onsite office at GMMH were all directly recruited into post. The onsite office was staffed during the daytime hours of the working week. In addition, NHSP staff would do ward rounds to see if there were problems with the arrangements for bank workers on site. Of course, individual bank workers may not have been present at the particular times that such ward rounds took place, for example, if they worked predominantly night shifts. Part of the respondent’s evidence dealt with the booking platform and the fact that it had additional functionality and was less ad hoc than GMMH’s. It provided an essential source of information as well as a central way of booking shifts. Mr Braiden[33]Both of the claimants gave evidence which was specific to their own circumstances. In evidence Mr Braiden accepted that he was not committed to working with GMMH, that he could pick and choose work to suit himself, although in practice this was his main source of income. His work with GMMH was not a ‘top up’ to a main job. He accepted that the method for booking shifts at GMMH changed over time. In the period just prior to the transfer it was mainly done via an online platform. He accepted that there was no guarantee of work at GMMH but, in reality, there were always shifts available as the Trust was often (if not always) short staffed. He indicated that when working at GMMH he felt some compulsion to move locations when he was asked to and to not cancel shifts, as he was concerned that he would lose his registration with the Trust if he got a reputation for doing so too much. Alternatively, he was concerned that some other sanction might be applied. When Mr Braiden first stared working at GMMH, the bookings were originally operated by the “CNB” (the Central Nurse Bank). A worker would phone up to see if there were shifts available or the CNB would call the worker. It was not an online process. The GMMH bank system subsequently went online and, in the main, the shifts were put up by GMMH and the worker would look and choose which shifts they wanted to sign up to. He could not recall ever having to provide his own dates of availability to GMMH first, he tended to select the shifts he wanted from those which were posted online. Although the registration document said nothing explicit about it, Mr Braiden says that he was paid for all classroom training he completed when he was engaged under GMMH’s own internal bank system. Mr Braiden accepted that the bank work for GMMH offered him flexibility and variety of work. He chose to stay as a 100% bank worker rather than applying for a permanent or substantive post away from the bank. Thus, he was relying solely on bank work. It was his main job rather than a top-up to a substantive post. He also indicated that he could book more than one shift at a time and could book the shifts months in advance or, alternatively, pick up available shifts at the last minute. Although he did not work set shifts, he did do a lot of work for GMMH under this system. To the extent that he treated the GMMH work as his main job, he did work regularly under the bank system. That is not the same as saying that he had set shifts which were guaranteed and/or which did not vary over time. Rather, he did a lot of work for GMMH so as to make up the equivalent of a full time role but the details of each assignment could change from day to day and week to week.[34]Pages 1 to 6 of the supplementary bundle also showed texts offering availability for work that the claimant could reply to and book. There were direct mailings of vacancies for work at GMMH. There were print outs of the shifts worked. In particular, he worked a shift on 24 February 2019 for seven and a half hours, 12 midday to 8 pm. The transfer happened at midnight into the 25 February and the next shift he worked was on 26 February. The shifts showed that there were relevant gaps between assignments. At page 374, for example, there was a gap between 26 August and 12 September 2019, between 12 November and 24 November, and between 19 April 2020 and 8 May 2020.[35]The claimant gave evidence that in January 2022 he was informed by the respondent that he was required to attend a compulsory training session and that it would be a two day training course. He realised that he had not been paid for his time and he says that when he queried this with the respondent, he was told that he would not be paid for the training he attended. He says that in January 2023 he was told he would have to attend the annual two day compulsory training session and, once again, he was not paid for his time. Mr Braiden says that since January 2025 he has attended a further unpaid training session on 25 April 2025 and he understands that he will be required to attend in person training for two days on an annual basis. Mr Ubege[36]Mr Ubege was different to Mr Braiden in that he actually had a substantive post with the Trust and used bank work as a ‘top-up’ option to supplement his main post and main source of income. He noted that under the original arrangements with GMMH he had to cancel a shift a minimum of three hours before the start of the shift whereas now a cancellation should be a minimum of two hours before the start of the shift. Under the GMMH system Mr Ubege sometimes put his availability onto the system beforehand and waited for offers of shift availability to come from GMMH. Later on he just booked onto the shifts that he wanted rather than waiting for the Trust to match his availability to the shifts that they wanted to have covered. The last shift that he worked before the transfer was on 4 February from 8.15 pm through to 7.45 am and then the first shift he worked after the transfer was 28 February 8.15 pm to 7.45 am. He agreed that he was sent a series of FAQ documents and consultation documents and he maintained that he still expected the transfer to be managed according to TUPE. He said that he was paid for training in 2019 and 2022 (after the transfer). When asked about the consultation where it was indicated that talks were ongoing about further payment for training and that the respondent would let workers know, Mr Ubege made the point that they were never actually told the final outcome of these discussions. The feedback was not provided. There is no evidence before this Employment Tribunal to suggest that the final outcome of the discussions was actually communicated to workers or, indeed, what that final agreement or outcome was.[37]In 2019 Mr Ubege did BLS, moving and handling, and breakaway training and was paid for it. He did not see this as a one off payment that had been agreed. He thought the entitlement was ongoing. It sounds as though Mr Ubege managed to get a payment for training in 2022 because he spoke to someone locally in the workplace who said that, because TUPE applied, he was entitled to it. This may possibly be the lady in the office who had transferred across from GMHH to NHSP. What she said to Mr Ubege seems to be a local divergence from the terms of the agreement. It may be that this training payment was based on a misunderstanding on the part of the individual in the office authorising the payment. Mr Ubege also says that after the transfer PVMA training was difficult to book via the ward managers at GMMH so it was hard to get on the course. Again, whether the manager booked you onto the course depended how much work you did for the particular ward in question.[38]Mr Ubege’s post transfer shift records were at [389] and there was a gap between 31 March and 8 April 2019, 19 April and 27 April 2019, 26 May and 11 June 2019, 14 July and 22 July 2019 and then 11 March to 29 May 2020. I understand this gap in Spring 2020 was due to the claimant being stranded overseas during COVID. There is a further, subsequent gap between 26 May to 8 June 2021. The documents and systems in general[39]Having heard evidence from both claimants I have to conclude that the written documents in this case from both GMMH and NHSP (which I have summarised above) appear to actually reflect the reality of the situation as regards the claimants’ working arrangements. They do not have the hallmarks of sham documents. They reflect the contemporaneous intentions of the relevant parties at the time, as conveyed to the relevant workforce. These documents seem to have been adhered to in practice and, where there is evidence of a departure from the contents of the documents in practice, I have already specifically documented it in these findings.[40]Insofar as it is necessary for me to make a finding, I accept the respondent’s evidence regarding permission to do bank work at other Trusts after the transfer. As a result of the transfer, the transferring workers would automatically be entitled to do work at GMMH under the terms of that transfer. If they wanted to work shifts for other Trusts via NHSP’s organisation or management, then they would effectively need to be accredited for each additional Trust that they wanted to work at. The worker would have to fulfil the compliance requirements of the particular Trust in question. This is because NHSP would operate differently for different Trusts under separate contracts which may have different requirements. NHSP was providing a service to the user Trusts. It basically reflected an outsourcing of management and administration of the bank workforce from the Trusts to NHSP for efficiency and costs reasons. Consequently, it would not be true to say that once a worker transferred to NHSP they were automatically entitled to work for any of NHSP’s client Trusts. A worker could choose to widen the scope of their accreditation and start to work for other Trusts by doing the required compliance. In practice, it appears that most workers would stay with the original Trust (GMMH). There are likely to have been sound practical reasons for this (for example, geographical.) If there was no lack of work with GMMH then there would be no real reason for a worker to look further afield for work.[41]It also follows from the above that under the new system the Trust would have to communicate to NHSP which shifts it needed to have cover for so that NHSP could administer bank workers to cover those shifts. The business need would have to be identified by the end user before it could be managed and fulfilled by NHSP’s register of bank workers. This is what was supposed to happen and what the two bodies had agreed between themselves. Of course there may have been some examples of divergence from that but that was not authorised practice under the terms of the agreement between GMMH and NHSP.[42]The respondent accepts that there is a policy in place to ensure that the system is not abused by workers cancelling late or on a repeated basis. This is monitored and sanctions can be applied up to and including removal from the register of bank workers. However, I also accept that this was not slavishly monitored as this would create a disproportionate administrative cost burden for the respondent. I also accept that PVMA training was only ever organised and paid for by the Trust (GMMH) and not by NHSP. It was effectively outside the scope of the transfer arrangements. GMMH retained control over who received the training (and when) and they controlled the expenditure on that training too.[43]GMMH was originally a respondent to these proceedings. In their response to the claim (their ET3) they seem to have accepted that this was a TUPE transfer. However, as set out above, this is a question of law and the Employment Tribunal is not bound by GMMH’s opinion as the putative transferor.[44]I also note that there seems to have been a series of generic documents placed on the websites belonging to either GMMH or NHSP. I say generic because they do not seem to have been prepared specifically for the transfer in question in this case. Therefore, where they diverge from the specific documents which are applicable to this specific transfer, then the specific document will be preferred to the generic document as being a better guide to the facts in this particular case.[45]I also conclude by noting that the respondent’s evidence was that the contract between the respondent and GMMH was entered into under an Order Form for Standard Services (extracts of which are in the bundle at [282 to 298].) This was part of a call off contract under a standard HealthTrust Europe framework agreement that NHSP frequently enters into. Appendix 5 of the Order Form (which deals with staff transfers) specified that staff were transferred from the Trust under TUPE [286-298] (see paragraphs1.1 and1.2 at page 287). Regardless of whether the parties to a contract of this kind consider that TUPE applies, the respondent’s witness says that this is the approach that is always taken since NHSP always agrees that it will take on active members of the existing staff bank where it enters into a contract to provide services for the provision of staff bank and the management of that bank. However, what I understand was agreed in this case, was that the parties would apply the principles of TUPE under the COSOP statement of practice. Just as the parties to a transfer cannot ‘contract out’ of the TUPE regulations where they apply in law, so it is also true they cannot ‘contract in’ to the statutory protection of the TUPE provisions. That is a question of law. If the parties sign up to a contract which itself improves on the statutory protections and purports to bring the case inside the scope of TUPE where it does not otherwise apply, this is actually a matter of contract law and has to be determined according to standard principles of contract law. What it creates, if anything, are contractual rights. It does not add statutory rights over and above what Parliament has determined through primary and secondary legislation.[46]The COSOP was also in the hearing bundle at [272]. It sets out what it is and what it achieves as a matter of law. Paragraph 1 states: “1. In order to meet these guiding principles the Government believes that there must be a clear and consistent policy for the treatment of staff, founded upon the provisions of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE), which replace the Transfer of Undertaking (Protection of Employment) Regulations 1981. This Statement of Practice sets out the framework that the Government expects all public sector organisations to work within to achieve this aim (see paragraph 6 for the coverage of this Statement).” A subparagraph at paragraph 5 states: “in circumstances where TUPE does not apply in strict legal terms to certain types of transfer between different parts of the public sector, the principles of TUPE should be followed (where possible using legislation to effect the transfer) and the staff involved should be treated no less favourably than had the Regulations applied;” Paragraph 6 states: “This Statement of Practice sets out a framework to be followed by public sector organisations to implement the Government’s policy on the treatment of staff transfers where the public sector is the employer when contracting out or the client in a subsequent retendering situation. It applies directly to central government departments and agencies and to the NHS. The Government expects other public sector organisations to follow this Statement of Practice…” In addition there is a section dealing with transfers as a result of Public Private Partnerships. In that section paragraph 11 states: 11. In such transfers the application of TUPE will always be a matter of law based on the individual circumstances of the particular transfer. However, the policy adopted in defining the terms of the contracting exercise can help ensure that staff should be protected by TUPE and that all parties have a clear understanding that TUPE should apply and will be followed. In such transfers, therefore, the public sector contracting authority should, except in genuinely exceptional circumstances (see paragraph 14) ensure that: …• The contracting exercise is then operated on the basis that the intention is that staff will transfer and TUPE should apply…” In the section dealing with transfers and reorganisations in the public sector paragraph 18 states: “The application of TUPE will, again, always be a matter of law based on the individual circumstances of the particular transfer...”[47]As can be seen, the document repeatedly reiterates that the actual application of TUPE is a matter of law and will depend on the particular circumstances of the specific case and this document is a policy document which does not widen the statutory scope of the TUPE regulations. It is a statement of practice which does not seem to create legal rights which individual workers can rely on to sue in the courts or the Tribunals. This is in line with the respondent’s evidence which was that TUPE does not always apply in a bank transfer situation but that there is usually a desire to ensure that the active part of the bank is taken on by NHSP as this provides the most seamless operational transition, with a primary focus on ensuring patient safety and safe staffing. The respondent indicated that in its experience it was common for the parties agree to apply the principles of TUPE in line with COSOP. The law Wages claims
The law
[48]Section 13 of the Employment Rights Act 1996 states: “(1) An employer shall not make a deduction from wages of a worker employed by him unless-(a) The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction. (2) In this section “relevant provision,” in relation to a worker’s contract, means a provision of the contract comprised- (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3) Where the total amount of wages paid on any occasion by the employer to a worker employed by him is less than the total amount of wages that is properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. (4) … (5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect. (6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring before the agreement or consent was signified. …”[49]Section 23 of the Employment Rights Act 1996 states:(1) A worker may present a complaint to an employment tribunal- (a) that his employer has made a deduction from his wages in contravention of section 13 (…); …(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with- (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) …(3) Where a complaint is brought under this section in respect of - (a) a series of deductions or payments, or (b) … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. …(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under the section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”[50]The unauthorised deductions of wages provisions apply to both employees and workers (within the meaning of section (230(3) Employment Rights Act 1996).[51]If what was paid by the employer to the worker on the relevant occasion was less than the amount properly payable (applying common law and contractual principles), then there has been a deduction for the purposes of section 13(3). Deciding whether wages are ‘properly payable’ will require Employment Tribunals to resolve any disputes as to the meaning of a contract, including questions of interpretation and implication. Tribunals must decide, on the ordinary principles of common law and contract, the total amount of wages that was properly payable to the worker on the relevant occasion. If an employer is contractually entitled to reduce a worker’s wages, either because there has been an agreed variation of contract or because there is a flexibility clause giving the employer the right to do so, the wages ‘properly payable’ will be the reduced wages due under the varied contract or under the flexibility clause (and provided this is the amount the worker receives, there will have been no unlawful deduction from wages). If, however, the agreement/flexibility clause in question does not cover the purported variation, the amount properly payable will be the original amount due and any deduction will be unauthorised unless, for example, the worker has given written consent prior to the deduction.[52]Determining what wages are ‘properly payable’ requires consideration of all the relevant terms of the contract, including any implied terms. In New Century Cleaning Co Ltd v Church 2000 IRLR 27, Lord Justice Morritt noted that, in terms of section 13(3), the question to be determined was what wages were properly payable to the claimant. In his view, the phrase ‘properly payable’ suggested that some legal, but not necessarily contractual, entitlement to the sum in question was required. This, he thought, was confirmed by section 27(1), which defines wages as ‘any sums payable to the worker in connection with his employment… whether payable under his contract or otherwise’. He did not believe that the words ‘or otherwise’ extended the ambit of ‘sums payable to the worker in connection with employment’ beyond those to which the worker has some legal entitlement. Deciding whether a worker has a legal entitlement to the payment in question will involve analysing the factual basis of the worker’s claim. The payment in question must be capable of quantification in order to constitute wages properly payable under section 13(3). Employee status/worker status[53]Section 230 of the Employments Right Act 1996 provides: “(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.” (3) In this Act “worker” … means an individual who has entered into or works under (or, where employment has ceased, worked under)-(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.[54]In Ready Mixed concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2QB 497 it was stated that a contract of service exists where three conditions are satisfied:(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly that in performance of that service to be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of contract are consistent with it being a contract of service. McKenna J went on to give examples of provisions inconsistent with the nature of a contract of service which included a lack of mutuality of obligation.[55]Following the Ready Mixed Concrete decision, the courts have established that there is an ‘irreducible minimum’ threshold without which it will be all but impossible for a contract of service to exist. It is now widely recognised that this entails three elements: mutuality of obligation; personal performance, and control. In Nethermere (St Neots) Ltd v Gardiner and anor 1984 ICR 612 it was recognised that there has to be ‘an irreducible minimum of obligation on each side to create a contract of service.’ That irreducible minimum has been referred to as the need for a wage (or other remuneration) coupled with the requirement for the employee to provide his own work and skill. Lord Irvine, in Carmichael and anor v National Power plc 1999 ICR 1226, indicated that a lack of obligations on one party to provide work and the other to accept work would result in ‘an absence of that irreducible minimum of mutual obligation necessary to create a contract of service.’[56]Casual workers (i.e. those who supply labour or services to another under an irregular or informal working arrangement) will generally qualify as ‘workers’ within the meaning of section 230(3) so long as they provide personal services under a contract and the other party to the contract is not a client or customer of a profession or business carried out by the individual in question. It is less common for casual staff to be classified as ‘employees.’ It is a characteristic of these relationships that there is no obligation to provide work and no obligation to accept it, and therefore claims by casual staff to employee status often fail through lack of mutuality of obligation. Where a working arrangement settles into an informal but regular pattern over a period of time, it may be possible for an individual to argue that a contract of service exists. The case law shows that a casual worker may be classified as an employee if either:(a) The worker can point to the existence of a ‘global’ or ‘umbrella’ contract of employment, which continues to exist during periods when he or she is not working. Such a contract may be implied in circumstances where there is a relationship of such a long-standing nature that, even though work is done on a casual or piece-work basis, the truth of the matter is that the employer is under a continuing obligation to provide work which the worker is likewise obliged to accept. Continuity of employment (which is necessary for statutory rights that depend upon an employee completing a period of qualifying service) can be established in these circumstances under section 212(1) Employment Rights Act 1996. The fact that an individual is free to work for another employer during periods when he or she is not required will be a relevant but not conclusive factor; or(b) The worker can successfully argue that he or she worked under a succession of specific, short-term contracts of service. A worker who does not benefit from the mutuality of obligation necessary to establish a ‘global’ contract of employment based on a long-standing relationship may nonetheless be able to establish mutuality of obligation within a specific engagement entered into as part of that relationship. Thus he or she may be able to establish that a single contract within the relationship gives rise to employee status, at least for its duration.[57]The requirement for mutuality in the context of an alleged global or umbrella contract will not be satisfied if the person or company that is in receipt of the putative employee’s services is under no obligation to offer work or, if offered, the putative employee is under no obligation to accept it (see Carmichael and anor v National Power plc 1999 ICR 1226, HL.)[58]In Clark v Oxfordshire Health Authority [1998] IRLR 125 Sir Christopher Slade, in the Court of Appeal, stated: “On the findings of the Industrial Tribunal, the Authority was at no relevant time under any obligation to offer the applicant work nor was she under any obligation to accept it. I would, for my part, accept that the mutual obligations required to found a global contract of employment need not necessarily and in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion, be likely to suffice. In my judgment, however, as I have already indicated, the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment. In the present case I can find no such mutuality subsisting during the periods when the applicant was not occupied in a “single engagement.” Any obligation of confidentiality binding her during such periods would have stemmed merely from previous single engagements. Apart from this, no continuing obligation whatever would have fallen on the Authority during such periods.”[59]In Clark it was determined that, in a case where there was no obligation for the bank nurse to accept work between assignments or for the Trust to provide work between assignments, a lack of mutuality of obligation prevented an umbrella or global contract of employment subsisting between individual assignments.[60]In Carmichael & Another v National Power Plc [1999] ICR 1226 the House of Lords (referring to Clark) found, in circumstances where tour guides accepted employment “on a casual as required basis” whereby applicants were offered, and performed, work as and when it arose, they were not employed between assignments. At 1235D Lord Hoffman stated: “Once it is accepted that the Tribunal’s findings as to lack of mutuality of obligation between the applicants and the CEGB cannot be disturbed, it follows that the engagement of the applicants as guides in 1989 cannot have constituted in itself a contract of employment. It laid down the terms upon which it was expected that they would from time to time work for the CEGB and it may well be that, when performing that work, they were being employed. But that would not be enough for the applicants. They could only succeed if the 1989 engagement created an employment relationship which subsisted when they were not working. On the findings of the Tribunal, it did not in itself give rise to any legal obligations at all and the applicants’ claim must therefore fail.” TUPE[61]Regulation 3 of TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) states (so far as relevant): “A relevant transfer(1) These regulations apply to – (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; (b) A service provision change, that is a situation in which – (i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”) … … and in which the conditions set out in paragraph (3) are satisfied.(2) In this regulation ‘economic entity’ means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. (2A) References in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out.(3) The conditions referred to in paragraph (1)(b) are that- (a) immediately before the service provision change – (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration ….”[62]Regulation 4 of TUPE states (so far as relevant): “Effect of relevant transfer on contracts of employment(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organising grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.(2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfera. all the transferor’s rights, powers duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and b. any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.(3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in Regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.(4) Subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the sole or principal reason for the variation is the transfer.[63]Employees are protected on a transfer mainly by regulations 4(1) and (2), under which the new employer takes over the employment contracts of all those employed or deemed to be employed immediately before the transfer. The transferee assumes all the rights, powers, duties and liabilities which the transferor had under those contracts and is bound by their terms and conditions as if he were the original employer. This puts limits on the transferee’s ability to vary the terms and conditions of transferred employees. If no TUPE protections apply, the parties may vary the terms of the contract by agreement and pursuant to common law principles of contract law.[64]In order for the employees in this case to be protected by the provisions of TUPE, they would have to have been employed by the transferor and assigned to the organised grouping of resources or employees that is the subject of the relevant transfer. Furthermore, they would have to have been so employed by the transferor ‘immediately before’ the transfer.[65]The definition of “immediately before” was considered in Secretary of State v. Spence and Others [1986[ ICR 651. In that case the Court of Appeal provided clarity as to the meaning of “immediately before.” They determined that the literal interpretation should be given to “immediately before,” such that it refers only to a contract of employment which is subsisting at the moment of transfer. (See Balcombe LJ at page 662D where he said: “Of course, on the interpretation that I have given to paragraph (1), namely, that it refers only to a contract of employment which is subsisting at the moment of transfer, the words defining the person employed as meaning a person so employed immediately before the transfer are unnecessary, but one can visualise a situation where they may clarify the position.”) In that case, employees who had been dismissed at 11:00am in the morning were not assigned to the transfer which took place at 2:00pm the same day.[66]Although the House of Lords in Litster v. Forth Dry Dock and Engineering Co Limited [1989] ICR 341, qualified that interpretation to prevent employees being dismissed so as to avoid a transfer, they agreed with the decision in Spence in relation to the construction of the words “immediately before” meaning ‘the moment of.’ Litster did not alter the definition of ‘immediately before.’ Rather, it added the phase, “or would have been so employed if he had not been unfairly dismissed in the circumstances described in reg 8(1).” This did not alter the meaning of ‘immediately before.’ In effect, it was an ‘anti contracting-out’ or ‘anti-avoidance’ measure to deem employees (who had in fact been dismissed) as being employed immediately before the transfer (i.e. at the moment of transfer.) It was designed to ensure that that automatic transfer principle within TUPE was not thwarted and followed on from the ECJ decision in P. Bork International A/S v. Foreningen af Arbejdsledere i Danmark (Case 101/87) [1989] I.R.L.R. 41. In Litster Lord Oliver stated (in relation to the Spence decision), “… the Court of Appeal… held that regulation 5(1) can apply only where, at the very moment of transfer, the contract of employment (in the sense of the existing relationship of employer and employee) is still subsisting. If it is not, then there is nothing upon which the regulation can bite, even though the employment has been determined only a matter of minutes (or, it may be, seconds) before the transfer. My Lords, for my part, I can detect no flaw in the reasoning by which Balcombe L.J., who delivered the leading judgment in the Court of Appeal, reached the conclusion on the facts of that case that regulation 5(1) did not operate to transfer the obligations of the original employer to the transferee. Where, before the actual transfer takes place, the employment of an employee is terminated for a reason unconnected with the transfer, I agree that the question of whether he was employed “immediately” before the transfer cannot sensibly be made to depend upon the degree of temporal proximity between the two events, except possibly in a case where they are so closely connected in point of time that it is, for practical purposes, impossible realistically to say that they are not precisely contemporaneous. Either the contract of employment is subsisting at the moment of the transfer or it is not, and if it is not, then, on the pure textual construction of regulation 5, neither paragraph (1) nor paragraph (2) (which is clearly subsidiary to and complementary with paragraph (1)) can have any operation. But Spence's case [1986] I.C.R. 651 was decided — and quite properly decided — entirely without reference to the effect of regulation 8(1) and in the context of the two important findings of fact by the industrial tribunal to which I have drawn attention. The Court of Appeal did not consider, and was not called upon to consider, a position where, whether under a collusive bargain or otherwise, an employee is dismissed from his employment solely or principally because of the prospective transfer of the undertaking in which he is employed, so that his dismissal is statutorily deemed to be unfair; and, of course, the case was decided without reference to the important Bork case [1989] I.R.L.R. 41 already referred to which had not been decided at the date of the Court of Appeal's judgment and which had not been reported at the time when the instant case was argued before the Court of Session.” Continuity of employment[67]Continuity of employment is governed by the Employment Rights Act 1996 at sections 210 to 219.[68]Sections 210(4) states that, subject to sections 215-217, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment. Subsection (5) notes that a person’s employment during any period is presumed to be continuous unless the contrary is shown.[69]Section 211 states: (1) An employee’s period of continuous employment for the purposes of any provision of this Acta. (subject to subsection (3)) begins with the day on which the employee starts work, and b. ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision….[70]Section 212 states: “Weeks counting in computing period. (1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment. … (3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is— (a) incapable of work in consequence of sickness or injury, (b) absent from work on account of a temporary cessation of work,[ or] (c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, counts in computing the employee's period of employment. (4) Not more than twenty-six weeks count under subsection (3)(a) …between any periods falling under subsection (1).
CONCLUSIONS
[71]I have taken the applicable legal principles into account and have reached the following conclusions in relation to these cases. Status of the claimants during and between assignments.[72]First of all I am going to consider the status of the claimants during and between the assignments. What were the contractual relationships between the claimants and the respondent both before the alleged transfer and after the alleged transfer? I address the period of time after the transfer first because the respondent was able to give direct evidence during the hearing in relation to that time period and the Tribunal has access to a more complete record in relation to that period of time. The situation after the transfer[73]The respondent, NHSP, conceded that during the term of each assignment there was a contract of employment between each claimant and the respondent. During the duration of any assignment there were the necessary hallmarks of a contract of service/contract of employment within the meaning of Section 230 of the Employment Rights Act 1996. Indeed, if I consider the principles in the case law (particularly Ready Mixed Concrete) and ask myself whether the relevant legal tests are satisfied I would say that they are. The three limbs of the Ready Mixed Concrete test are as set out above, namely: -(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in performance of some service for the master. (Personal service)(ii) He agrees expressly or impliedly that in performance of that service he will be subject to the other’s control to a sufficient degree to make that other the master. (Control)(iii) The other provisions of the contract are consistent with it being a contract of service. (Examples include presence or absence of ‘mutuality of obligation,’ that is, the obligation on one party to offer work and the obligation on the other party to accept and do the work that has been offered.)[74]I am satisfied, based on the evidence I have heard (together with what the respondent says), that when these claimants were working on assignments provided by NHSP, they were employed by NHSP. For the duration of the assignment there was a contract of employment between the claimants and the respondent.[75]The crucial issue in this case relates to the periods between the assignments. What happens at the point when one assignment ends and the only relationship subsisting between the claimants and NHSP is that which is governed by the terms of registration document?[76]The registration document is effectively a framework agreement between the parties which facilitates the operation of the bank system for each worker. What is the nature of that arrangement? I am satisfied that it is an agreement whereby the claimants (and others) will be kept ‘on the register’ so that they have access to assignments which they may or may not choose to book and complete. They remain ‘on the register’ or ‘in the bank’ if they continue to comply with the terms of registration. If they are on the list then they continue to be eligible to book bank assignments with the respondent.[77]However, I am not satisfied that there are sufficient obligations between the parties for there to be a contract of any sort between the parties during the periods between the assignments. Rather, the document sets out the qualifications that a worker must meet in order to be approved and deemed suitable to be given work at GMMH via the NHSP system. It also sets out the framework for how such assignments will operate if and when the parties enter into a contract of employment for the duration of the assignment. It certainly does not meet the hallmarks referred to in Ready Mixed Concrete. During the gaps between assignments there is no agreement that the worker will do any work at all for the respondent. There is no obligation on the respondent to offer a particular worker a further assignment. There is no guarantee of a future assignment or any minimum amount of work. The worker is not obliged to accept any further work from the respondent. There is no corresponding obligation that the respondent will pay a worker in between assignments. There is no requirement of personal service.[78]Furthermore, the respondent exerts no control over the bank workers between the assignments. Hence, the worker can work anywhere else he likes between assignments, whether or not for the respondent. Indeed, the worker can choose not to work at all. The only element of control that one could potentially identify is the requirement that the worker has sufficient rest breaks between assignments. However, that is a matter of safety or compliance with the Working Time Regulations. At most, it is part of the preconditions of eligibility for a worker to satisfy in order to work a further shift: has the worker ensured that they are sufficiently well rested via a rest break before starting the next assignment? It ‘goes to’ whether the worker is deemed suitable to be offered the work. This is an assessment of eligibility rather than evidence of control for the purposes of a contract of service. It is an eligibility or suitability requirement, not an element of control. The respondent cannot control what the worker does between assignments in terms of rest and recovery. The respondent does not govern or mandate when the worker takes his rest breaks if he/she is not on an assignment. All that the respondent can do is decide whether the worker is suitably well rested to be offered a further contract of employment, a further assignment.[79]In relation to the third limb of Ready Mixed Concrete, are the other provisions of the contract consistent with it being a contract of employment? Here the issue of mutuality of obligation arises. I am satisfied that the relevant documents are not sham documents. The point which arises from the documents (and which seems to be accepted by the claimants) is that there was no obligation on NHSP to offer any more work after the conclusion of one assignment. There was also no obligation on the worker to accept any more work after the conclusion of the agreed assignment. Each assignment was self-contained. Between the assignments the parties were free to walk away from the arrangement. Indeed, that is the essence of bank work, it is the essence of a flexible workforce. There will be pros and cons to that flexibility from both parties’ points of view but it remains a flexible and active choice. Thus, some workers, like Mr Ubege, will have a main job and use this as bank work a ‘top-up’ or extra source of income. Others, like Mr Braiden, may choose it as their only source of income. However, they do this knowing that this is not the same as having a substantive post within an NHS Trust.[80]In Clark Sir Christopher Slade said: “In my judgment two decisions of this Court are authority, binding on us, for the proposition that no “contract of employment” within the definition contained in section 153(1) of the l978 Act (whether it be given the extra-statutory name “global” or “umbrella” or any other name) can exist in the absence of mutual obligations subsisting over the entire duration of the relevant period. In Nethermere (supra) all three members of the court were agreed that there must be mutual legally binding obligations on each side to create a contract of service.” And “On the findings of the Industrial Tribunal, the Authority was at no relevant time under any obligation to offer the applicant work nor was she under any obligation to accept it. I would, for my part, accept that the mutual obligations required to found a global contract of employment need not necessarily and in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion, be likely to suffice. In my judgment, however, as I have already indicated, the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment. In the present case I can find no such mutuality subsisting during the periods when the applicant was not occupied in a “single engagement.” Any obligation of confidentiality binding her during such periods would have stemmed merely from previous single engagements. Apart from this, no continuing obligation whatever would have fallen on the Authority during such periods. It follows that in my judgment this appeal will have to be allowed because the Employment Appeal Tribunal was not entitled to reach the conclusion that the applicant was at the material time employed by the Authority under a global contract of employment and that conclusion was on any footing erroneous as a matter of law.”[81]In line with the decision in Clark and Oxfordshire Health Authority I have to conclude that lack of mutuality of obligation between assignments means that there is no contract of employment between the assignments. Nor was there control or an obligation of personal service. In the period between the assignments there was no contract of employment. The situation before the transfer[82]The situation prior to the alleged transfer is slightly different as the documents suggest that GMMH did not consider that the claimants were employees even for the duration of the individual assignments. They looked at it as a duty of care issue. However, irrespective of what the GMMH’s documents say, I suspect that the claimants would have met the test for being employees during the course of their assignments with GMMH. There is no real, material difference between the way the assignments themselves operated prior to the transfer as compared to how they operated after the transfer (in terms of control, mutuality of obligation and personal service etc.)[83]Once again, the crucial point is what happened between the assignments. There is plenty of evidence to suggest that the tests for employment were not satisfied during the gaps in between the assignments. In particular, there was no mutuality of obligation. There was no obligation to offer and accept work between the assignments. It was only once a worker had signed up to do a particular assignment that they were subject to obligations (such as in relation to cancellation or a change of location.) Furthermore, the workers had the right to terminate the registration immediately. They did not need to give a notice period. GMMH reserved the right to terminate a worker’s registration with the bank at any stage. This reflects the freedom that either party had to walk away from the arrangement whenever they wanted to. I also have regard to the principles enunciated in the Temporary Resources Handbook.[84]Once again, I find, in line with Clarke and Carmichael that there was no contract of employment in the periods between the individual assignments with GMMH. In reality, although GMMH may have thought otherwise, there was no material difference in the contractual situation prior to the transfer and after the transfer. Worker status[85]For completeness, I have gone on to consider whether the claimants had the status of workers (section 230(3)(b)) during the gaps in between the assignments. However, during the gaps between assignments the claimants did not undertake to do any work personally (or otherwise) for the respondent. They were entirely free to walk away from the arrangement. The obligation of personal service only arose during the course of each assignment (when the claimants can be seen to be employed under a contract of service.) If a worker did not book a further assignment they were under no further obligation to the respondent. They could walk away from the arrangement. This is true both before the transfer and after the transfer.[86]I am satisfied that there was no ‘worker contract’ between the specific assignments, either before or after the ‘transfer.’ Definition of employment for the purposes of TUPE[87]In addition to the above, I have had to consider a further argument which is derived from the written submissions that Mr Braiden’s former solicitors submitted. It is an argument about whether the terms of the TUPE regulations apply a different definition of employment to that which is set out in the Employment Rights Act. If so, the argument runs, individuals who would not qualify as employees under the Employment Rights Act, can nevertheless take the benefit of the protection afforded by the TUPE regulations. This argument is derived from paragraph 35 onwards in Mr Braiden’s written submissions. Those written submissions stop abruptly, which suggests that they are actually incomplete. (This is the most complete version of the document possessed by Mr Braiden, the respondent or the Tribunal.) As the author of the document was not present at the Tribunal to clarify the argument, I have done my best to discern the argument and then to address it in these reasons.[88]There has been a good deal of discussion and consideration as to the meaning of the written submissions. The nub of the argument seems to be that we should look, not at the Employment Rights Act (or any other source) but to the TUPE regulations themselves for the definition of an ‘employee.’ It seems to be suggested that if we look at the TUPE definition, a worker who would not qualify as an employee under the Employment Rights Act, would qualify as an employee for the purposes of TUPE.[89]Regulation 4 of TUPE sets out the effect of a transfer on contracts of employment. Regulation 2 of TUPE is the definition section. It defines an employee as, “any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services and references to a person’s employer shall be construed accordingly.” [emphasis added.] The question for me to consider is whether the phrase “or otherwise” covers these claimants so that they come within the ambit of TUPE.[90]Respondent’s counsel informs me that there is no appellate authority on this particular point. I have therefore reviewed the available source material for guidance.[91]I started with the original European Directive 77/187/EEC which underpins the domestic legislation. The text of Article 3(1) is: “The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee.” This suggests that there must be some sort of kinship between these two concepts (contract of employment and employment relationship). The employment relationship is not the same as a business relationship.[92]I also conclude that use of the word ‘relationship’ suggests an extant relationship. Does the claimant under the framework in place with these respondents actually have an active legal relationship? Or is there just a framework document which is to be used to regulate the succession of contracts which he does decide to enter into? I think the latter view is the correct view of the circumstances in this case.[93]I was called upon to consider a case called Governing Body of Clifton Middle School and others -v- Askew [1999] ICR 286. Lord Justice Peter Gibson made some observations in that case (at page 297 paragraphs D and E) about the original Directive and Regulations. He states: “Directive 77/187 refers to both a contract of employment and an employment relationship; the latter term must therefore go wider than the former. But neither term is defined in the Directive, and there has been some discussion before us as to whether an employment relationship must be a contractual relationship. Mr. Oldham for the respondents pointed to the words of the European Court of Justice as to the applicability of the Directive wherever "in the context of contractual relationships" the employer changes. Mr. Linden submitted that those words were not directed to the relationship between employers and employees but to that between transferor and transferee. Whichever is correct, it is clear that the Directive contemplates that the employment relationship, no less than the contract of employment, must give rise to rights and obligations on the transferor with rights for the employee to enforce the liability in respect of those obligations (see article 3(1)). The Court of Justice has held that it is a condition for the operation of the Directive that the employee of the transferor continues as an employee of the transferee, that the Directive will not apply if the relationship between the transferor and the person concerned is not that of employer and employee and that the Directive may be relied upon only by persons who are protected as employees under the law of the member state concerned; if they are so protected, the Directive ensures that their rights arising from a contract of employment or an employment relationship are not diminished as a result of the transfer (see Foreningen af Arbejdsledere i Danmark v. AIS Danmols Inventar (Case 105/84) [1985] E.C.R. 2639, especially at p. 2653, paras. 27 and 28). It is therefore for the English court to determine whether Mr. Askew was an employee of the old governing body under English law.”[94]In that passage Peter Gibson LJ indicates that an ‘employment relationship’ must go beyond a strict ‘contract of employment,’ otherwise why is that terminology included in the provisions? It would be surplus to requirements. So, ‘employee’ under the Directive may have a broader definition that that under English common law. However, he goes on to observe that what constitutes an employment relationship is a matter for national law. Under English law, unamended by overlying statutes, an ‘employment relationship’ is a ‘contract of employment’ in a pure, common law sense. That is what it means at common law before any other statutory amendment (from various Acts or Regulations) are superimposed on the common law framework. I therefore take the plain reading and interpretation of his comments as being that the Tribunal should look at the unadulterated common law to see who is in an employment relationship and who is not. In English law, ‘contract of employment’ and ‘employment relationship’ are synonymous. It is only in specific later legislation that the definition is widened. This shows the narrowness of the definition of employment in English common law. I therefore take the judgment in Askew as authority for the proposition that I should go back to common law English definition of employment relationship unless some other statutory definition applies (or the Tribunal is required to give a purposive interpretation for EU purposes).[95]In this area of English employment law there is no other statutory definition to turn to other than the TUPE regulations themselves.[96]I then continued to consider the judgment in Askew at page 298 D-G. In that passage Peter Gibson LJ is saying that there has to be a contract for there to be an employment relationship. He did not think that the words “or otherwise” meant that no contract was required at all.[97]On the facts of this case I am not satisfied that there was a contract of any legal sort between the claimants and the respondent in the periods between the assignments. The Terms of Registration are a framework under which the parties will operate to enter into the subsequent contracts (i.e. the assignments.) The Terms of Registration document does not create legal rights and obligations in itself which govern the parties in between the booked assignments. Rather, it explains how the parties will approach matters if both of them decide to enter into assignment contracts. It is a gateway to a contract rather than a contract itself. A qualification document or register, if you will.[98]I then moved on to look at the later Directive, The Acquired Rights Directive 2001/23/EC. That refers to an employee as someone who is protected as an employee under national employment law (Article 2(1)). So, again, that would be English law in this case. It underscores the need to go back to English law and it is without prejudice to the national definition of ‘employment contract’ or ‘employment relationship.’[99]I then considered the subsequent case of Albron Catering BV v FNV Bondgenoten [2011] ICR 373. This doesn’t take matters much further.[100]I was then directed to consider a first instance decision called Dewhurst and Revisecatch Ltd (2201909/2018 and others). This decided that a ‘worker’ within the meaning of section 230(3)(b) of the Employment Rights Act is an employee for the purposes of the TUPE regulations. First of all, it was a first instance decision and so the Tribunal is not required to follow it. Secondly, even if I were so required, I do not think it assists the claimants in this case if the claimants were not ‘limb (b)’ workers in the periods between assignments (I am already satisfied that they were employees during the assignments.) As already stated, in the periods between the assignments in this case there was no obligation of personal service (not even to a minimal level). Even if I were to follow Dewhurst, I am not bound to decide that the claimants are covered by the TUPE provisions. In fact, I am not convinced that there was a contractual relationship of any type subsisting between the parties in the periods between the individual assignments. In between the assignments there were no active obligations between the parties. All there was, was a framework for maintaining a list of workers to whom offers of employment assignments can be made. There is no feature of the evidence in this case to establish that there was a limb b worker relationship between the parties in the periods between the assignments (section 230(3)(b) ERA). “Immediately before the transfer.”[101]Having concluded that the claimants were employed by GMMH and NHSP during the assignments (and not in the period between assignments) I consider the next question. Assuming for a moment that there was a TUPE transfer (which has not yet been established) could the claimants gain protection under the TUPE provisions? In order to determine this (and assuming that the transfer was a TUPE transfer) I have to determine whether the claimants were employed ‘immediately before’ the transfer so as to have their contracts transferred across to NHSP.[102]In this case, the ‘transfer’ took place just after midnight, at the start of 25 February 2019. Taking into account the decision in Spence I have to consider whether the claimants were employed at “at the moment” of the transfer.[103]Mr Braiden’s assignment finished at 8pm on 24 February and his next one did not start until 26 February. In light of my conclusions above, there was no contract of employment or worker contract for Mr Braiden in the time between 8pm on 24 February and the transfer on 25 February. There was no contract of employment or worker contract or employment relationship subsisting at the moment of transfer. Likewise, Mr Ubege’s last assignment pre transfer ended at 7.45am 5 February 2019. His next shift was on 28 February 2019. Again, he was not an employee or worker under a contract at the moment of transfer.[104]Protection for employees is covered by Regulation 4 of TUPE. In order to benefit from protection under TUPE the claimants have to show that they come within the scope of Regulation 4. Are these claimants “any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer?” Are the requirements of regulation 4(3) satisfied? Regulation 4(3) cross refers to regulations 7(1) which sets out the prohibition on dismissal solely or principally because of the transfer.[105]Based on my findings of fact it is clear that the claimants were not, as a matter of fact, employed at the moment of transfer. The transfer took place in the gaps between their assignments. According to Spence a literal interpretation should be given to ‘immediately before,’ such that it refers only to a contract of employment which is “subsisting at the moment of transfer.” In that case a four hour gap between dismissal and transfer was enough for the court to conclude that the employee was not employed immediately before the transfer. By coincidence this appears to be the same amount of time as in Mr Braiden’s case (a four hour gap.) The current claimants do not fall within the interpretation of ‘immediately before’ as set out in Spence. This is a strict and literal interpretation but it is one which I am bound to follow.[106]The strict interpretation has been somewhat modified by what I would refer to as anti-avoidance principles in Litster v Forth Dry Dock (see above). The Tribunal reads it alongside the provisions at regulation7(1). The gist of it is that employers cannot thwart the protection of the regulations by dismissing employees before the transfer if the only reason that they are doing so (or the principal reason they are doing so) is the transfer. The problem, on the facts of this case, is that these employees cannot take advantage of the principles in Litster because they were not dismissed because of the transfer in any way, not even partially. The assignments (and therefore the contracts of employment) came to an end at the time they did because it was always intended that they would end at those times. The contract terminated on the normal expiration of the contract in accordance with the arrangements for bank workers. Put another way, the contract would have ended in the same way at the same time even if no transfer were even contemplated. The transfer was causally irrelevant. There is no conceivable way of arguing that this is a Regulation 7(1) dismissal. The principles in Litster therefore cannot assist these particular claimants and establish them as employed at the date of transfer (or immediately before transfer) when, as a matter of fact, they were not.[107]The net result of the above is that, even if there was a TUPE transfer, these claimants cannot take the benefit of it because they were not employed by the alleged transferor immediately before the transfer. If they cannot take advantage of TUPE, then there is no restriction on the respondent varying the terms of the contract so that classroom based training was not paid (see further below.) Was there actually a TUPE transfer in this case?[108]This issue is now a moot point because, whether or not the transfer was a TUPE transfer, these two claimants cannot take the benefit of TUPE protections for the reasons already stated. However, for completeness I will address the issue briefly.[109]I considered whether there was a Service Provision Change transfer. I considered whether there was an organised grouping of employees which had as its principal purpose the carrying out of activities on behalf of the client. The activities here (bank work for GMMH) remain fundamentally the same after the transfer notwithstanding the changes in the way that the service was provided by NHSP. The activities were still healthcare work on the bank system for GMMH. I would have been satisfied that there was an organised grouping of employees. They were the people who had been signed up on the register and kept on the list to be offered bank work at GMMH.[110]I considered whether this organised grouping of employees existed immediately before the service provision change (in line with the decision in Spence). In reality we don’t know, because we don’t know if any of the employees on the bank list were in the middle of their contracts (i.e. assignments) at the time of the transfer. It may be unlikely that nobody was on shift at the moment of transfer and is settled law that a ‘grouping of employees’ can consist of one employee. However, the burden is on claimants to prove this. So, if I were forced to decide the point, I would conclude that they have not proved that the organised grouping of employees existed at the moment of transfer. I do accept that there was an intention that after the service provision change those activities would continue (and not just for a single event) but that does not assist the claimants if the provisions of regulation 3(3)(a)(i) are not satisfied. I am not convinced that the changes in the way that the bank system was operated by the respondent mean that it was not a service provision change. I think that the activities stayed the same and there was still a designated workforce to do them. The problem is that I can’t be satisfied that the organised grouping of employees was employed immediately before the transfer. Furthermore I cannot conclude that these two individual claimants were employed and assigned to the group immediately before the transfer (i.e. at the moment of transfer.)[111]On balance, therefore, I am not satisfied that, on the facts of this case, that there was a TUPE transfer by way of Service Provision Change. Even if there was, the claimants cannot take the benefit as they were not employed at the required time. (The same would be true of a regulation 3(1)(a) transfer of undertaking and I note that Mr Braiden’s prior legal representative suggested in his submissions that this case would more likely amount to a service provision change than a business transfer under regulation 3(1)(a).) My conclusion is that there were circumstances capable of amounting to an SPC (Service Provision Change) transfer but the claimants have not proved that there was an organised grouping of employees at the moment of transfer and, in any event, I have found that they were not part of that grouping of employees at the moment of transfer. COSOP[112]I wish to make a comment in relation to COSOP. As I have already indicated, COSOP is not the same as TUPE. If TUPE does not apply to a scenario as a matter of law under the TUPE regulations, then COSOP does not implement TUPE by consent between transferor and transferee. COSOP is guidance to be applied between GMMH and NHSP. The claimants are not party to the guidance and cannot argue that they gained contractual rights under it which they can sue on in the Employment Tribunal. The deductions from wages[113]As the claimants cannot rely on any TUPE transfer to ensure that their payment entitlements continued in the same way after transfer as before the transfer, I just have to consider what was ‘properly payable’ to the claimants during their time with NHSP. What were they legally entitled to, whether under the contract or otherwise, pursuant to Section 13(3) of the Employment Rights Act?[114]The terms of the assignment in question did not offer payment for training. (He who asserts something must prove it.) The ‘Measures’ documents specifically say that the claimants would not be paid for training of any sort. So the starting point under the express terms of the agreement with the respondent is that there is no payment for training. The FAQs and the consultation documents also make it clear that there is no payment for training. So the express term of the contract is that the claimants will receive no payment for training.[115]There is no evidential basis on which I can conclude that it is necessary to imply a term which directly contradicts the explicit and express terms of the contractual agreement. I conclude that the email relied upon by Mr Braiden which refers to payment for a day and a half’s worth of specific training was just that, a one off agreement to pay for that type of training in that particular year. There is nothing in the email to suggest that it was intended to constitute an ongoing obligation and there was no update to the formal documents to indicate a ‘carve out’ to preserve these payments on an ongoing basis.[116]The claimants did receive some payments in the first year after the transfer. This was the product of the discussions about the issue which are referred to above in the findings of fact. However, there is no evidence to show that the claimants had a legal entitlement to this payment, whether under the contract or otherwise. There was no variation to the contract. Training payments did not become ‘properly payable’ for the purposes of the unauthorised deductions from wages claim.[117]One of the claimants (Mr Ubege) also received a subsequent payment. How and why did this happen? To the extent that there is evidence about this, it appears to be the product of him raising it with a sympathetic member of staff in the office. If she authorised payment, it appears that she did so when the claimant was not strictly, legally entitled to it. To that extent he was overpaid. The respondent is not thereby required to continue paying for training because of this ‘one off’ payment. Again, I remind myself that the legal burden of proof in a case of this nature is on the claimants. I also note that any variations to the agreement would likely have been reduced to writing in some way. The documents say that discussions were ongoing and that the respondent would feedback the final position to the claimants. This final feedback was never provided. The claimants therefore have nothing that they can refer me to in order to show that there was a variation to the agreement as a result of the discussions. The burden of proof is on the claimants in this regard.[118]The respondent showed that there are specific written documents which are usually used to record changes to the agreement over time, the “CCN” or “Contract Change Notice.” There is no CCN or similar to show a change to establish an entitlement to paid training.[119]Given the absence of the TUPE protection, the claimants cannot show that they were entitled to be paid for training under the contract (or other legal entitlement) when they transferred to NHSP. Therefore, the claims would have to fail at this point in any event.[120]If, contrary to my conclusions, TUPE did apply, the claim would still fail because of the individual assignment model. The protection given by the TUPE regulations comes to an end with the first shift post-transfer if there is a gap in continuity pursuant to sections 210 to 213 of the Employment Rights Act. Sections 210 and 212 indicate that in any week where there is a contract in place during part of the week, that week counts for continuity purposes. So, where there is a gap of more than a week without a contract (or assignment in this case) then there is a gap in continuity of employment which breaks continuity of employment.[121]Mr Braiden has a gap of more than a week in 2019 and it means that TUPE does not assist him to get past the end of the first assignment post transfer. His first claim for unpaid training relates to January 2022. The parties to a contract are entitled to vary the contract after the termination of the contract to which TUPE applies. Consequently, he is not assisted by TUPE even if it applies. The first time he signs up to an assignment after the gap in continuity, he is agreeing to a contract without paid training and TUPE does not prevent this. I also note that Mr Braiden was explicitly told after January 2022 that further training would not be paid.[122]Likewise, for Mr Ubege there is a break in continuity (at the latest) from 26 May 2019 (if not before.) If TUPE applied, the TUPE protection would lapse at that point. Mr Ubege’s claim relates to 2023. Consequently, he cannot use TUPE to protect him from changes to his entitlements under the contract after the break in continuity.[123]It follows from the above that there was no legal right to payment for training after NHSP took over the bank service. There was no statutory right or express/implied contractual right or other source of legal entitlement. In light of that, the case fails on a substantive basis whether or not there was a TUPE transfer.[124]Given that the claims fail for the reasons already discussed, I have not addressed the time limit/limitation point in these reasons. Summary of conclusions[125]I can summarise my conclusions in this case as follows. Prior to the transfer there was a series of assignments. During the life of each of those assignments the claimants were employees of GMMH. There was no contractual relationship between the claimants and GMMH in between the assignments, whether as an employee or with worker status. After the transfer there was a series of contracts of employment during the individual assignments but no employment or worker status in the periods in between assignments. There was no contractual relationship in the gaps between the assignments.[126]Neither of the claimants were employed ‘immediately before’ the transfer with the result that they are not covered by regulation 4 and their contracts did not transfer over to the respondent. In theory, there could have been a service provision change transfer but I am not satisfied that there was proof of the ‘organised grouping of employees’ at the moment of transfer. In addition, the claimants were not in the employment and assigned to that grouping of employees at the moment of transfer. COSOP does not give the claimants TUPE protections where TUPE itself does not apply as a matter of law.[127]As there is no TUPE protection, the sums payable during their time with the respondent are basically standard unauthorised deductions claims. I have considered whether there was a contractual or other legal entitlement to the payments claimed. I have concluded that the claimants have failed to prove that legal entitlement to payment for training during their time with the respondent. Furthermore, even if there was TUPE protection, the contracts to which the TUPE limitations and protections applied had lapsed well before the date of the first alleged underpayment in this case. The breaks in continuity of employment meant that new terms and conditions where training was unpaid could apply to the claimants’ employment well before the dates of the training to which these claims relate. With a break in continuity I can look afresh at the pay entitlement under the contract. I can find no breach of an express or implied term of the contract nor can I discern a statutory legal entitlement which would underpin a claim for payment for training as claimed by these claimants. For all these reasons, the claimants’ claims fail and are dismissed. Approved by: