Ms L Smith and others v Rollandene Ltd and Mansfield Care Ltd: 4110623/2021 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4110623/2021, 4110622/2021
Between
Ms L Smith and othersClaimantRollandene Ltd and Mansfield Care LtdRespondent
Before
Employment Judge M A MacleodDate 7 April 2025
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that:(1) There was a relevant transfer of the affected staff within the meaning of Regulation 3(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 from the 1 st to the 2 nd respondent;(2) The relevant transfer took place on 29 June 2021 ;(3) Laura Smith was an employee of the 1 st respondent as at the date of the transfer;(4) Laura Smith and Leah Newman should have transferred employment to the 2 nd respondent as at the date of the transfer; and(5) There was a failure to consult with staff in breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992; and(6) That there should be a remedy hearing to determine the effect of these findings upon both 1 st and 2 nd respondents and all claimants, including the lead claimants, on a date to be fixed by the Tribunal following the return of date listing letters.
REASONS
[1]In this case, 17 claimants raised complaints before the Employment Tribunal in which a number of claims were presented to the Tribunal. Following a Preliminary Hearing in April 2022, Employment Judge Sangster determined that there should be lead claimants to represent the claims made by all claimants in these case.[2]A Hearing was listed to take place on 1 , 2 and 3 August 2022. As it turned out, it did not prove possible to conclude the Hearing in that diet, and accordingly further dates were listed commencing 10 November 2022. Unfortunately, owing to the illness of one of the representatives, Mr Haywood, and with the consent of all parties, the Tribunal required to postpone that Hearing. The Hearing then reconvened on 11 and 12 January 2023, whereupon it was concluded.[3]The Hearing in January required to be converted into a “hybrid” Hearing, as one of the representatives, Mr Walker, was unwell and unable to travel to Edinburgh. With the consent of all parties, Mr Walker was able to attend the Hearing by Cloud Video Platform, and all parties and the Tribunal were able, with occasional interruptions to the signal, to hear and see each other, and thereby to conclude the Hearing.[4]Prior to the final dates in January 2023, one of the original lead claimants, Angela Conway, withdrew her claim, and following a Preliminary Hearing convened by telephone conference call at short notice on 21 December 2022, she was replaced as lead claimant by Laura Smith. The terms of the Note following that Preliminary Hearing are referred to.[5]The lead claimants were represented throughout by Mr M Haywood, barrister, instructed by Mr P Kissen, solicitor. Mr D Walker, solicitor, appeared for the 1 st respondent, and Mr G Bathgate, solicitor, appeared for the 2nd respondent.[6]The following witnesses gave evidence to the Tribunal in the Hearing:• Mairi Ishbel Wood, Director and Shareholder, 1 st respondent;• Kenneth Harper Wood, Retired, son of Mairi Wood;• Lucy Duffin, Operations Manager, 2 nd respondent;• Sharon McGowan, Group Operations Manager, 2 nd respondent;• Frank Pratt, Retired Chartered Accountant;• Andrew Richard Hume, Chief Executive, 2 nd respondent;• Laura Smith, lead claimant, Senior Charge Nurse;• Leah Newman, lead claimant, Care Assistant.[7]A joint bundle of productions was presented to the Tribunal and relied upon by the parties in the course of the Hearing. Where reference is made to a document in the joint bundle, we have noted the page number by adding it in brackets after noting the details of the document. Prior to the final Hearing dates, a supplementary bundle was produced in order to provide evidence relating to the newly-established lead claimant Laura Smith. References to documents within that bundle are prefixed with “S”.[8]Based on the evidence led and the information presented, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[9]The 1 st respondent is a limited company which operated the Adamwood Nursing Home (“Adamwood”), at 47C Ravensheugh Road, Musselburgh, East Lothian. Mrs Mairi Wood has been one of the shareholders in the company with her husband, Ian Wood, since it was incorporated in 1989. Adamwood was registered with the Care Inspectorate since April 2002. Mrs Wood, a qualified and registered nurse, was the manager of Adamwood.[10]Adamwood was a Care Home which cared for elderly individuals on a residential basis, providing nursing and care services to meet their individual needs. The Home had a maximum capacity of 13 residents, who were either funded by East Lothian Council, the City of Edinburgh Council or privately.[11]In 201 8, Mrs Wood came to the conclusion that it would be appropriate to sell the business, given that her husband was suffering from Alzheimer’s ................Disease and required considerable personal care in their home.[12]In March 2021, seeking advice from Frank Pratt, a Chartered Accountant and partner in Whitelaw Wells, of Ainslie Place, Edinburgh, Mrs Wood engaged in negotiations with Simply Musselburgh Care Limited (“Simply”). Her solicitor, Stuart Duncan of Davidson Chalmers Stewart LLP, emailed her on 2 March 2021 (122) to say that Simply wished to proceed with the purchase of the business at a purchase price of £150,000, on the basis that they (Simply) would be given a 12 month rent free occupancy of Adamwood House.[13]On 6 March 2021, Mrs Wood emailed Mr Pratt. She noted that Simply were very keen to conclude the deal as soon as possible, but that she wanted to advise them that she was withdrawing from the negotiations. She did, however, want to be sure of “Andrew’s intentions”. This was a reference to Andrew Hume, the Managing Director of the 2 nd respondent, who was known to the claimant as another care home owner and had been introduced to her by Frank Pratt some years before. She expressed some concern about the affordability of any agreement reached.[14]The 2 nd respondent is a care company with ownership and operation of more than 10 care homes.[15]On 7 March 2021, Mr Pratt wrote to Mrs Wood under the heading “Discussions with Andrew”. The tenor of the discussions was that the 2 nd respondent intended to build and open a new care home in Haddington, likely to be completed by September 2022, to which the residents and 15 staff of Adamwood could be moved. The letter stated (119): “Good afternoon Mairi. Thanks for this. I appreciate your concerns and have spoken to Andrew a couple of times in an effort to get this moved forward. I have drafted Heads of Terms which would document and secure the deal for both parties. I attach them for your review. Andrew is happy with them, having ........... QrftQflQtf J f g gg fg gy .~ ..................................-................................................................. Basically they state that as soon as the Haddington Home is built he will take staff and residents and pay you an amount. That amount will be calculated on numbers of residents at a rate. As you’ll see there is an upper limit of £200k and a lower limit of £1 40k. I was keen to ensure that there was a lower limit taking into consideration your concerns about occupancy. Therefore the £140k figure. I have reviewed your occupancy numbers from 2015 to 2020 and they never dip below 8 and average 11 or 12. The formula on current numbers of 10 private would deliver £1 75k. The other factors to consider are: 1. under the Simply deal you have to rent Adam wood to them for a year for a peppercorn rent. That really prevents you from winding things up until say June 2022. 2. With Andrew’s deal you will enjoy a further 18 months trading and with profits running at circa [redacted] per annum you should be considerably better off. Please let me know your thoughts. ”[16]If the business of the 1 st respondent were to be sold to the 2 nd respondent, all debts of the company could be paid off, and any balance paid to Mrs Wood and her husband, enabling them to pay off their substantial mortgage and retain the balance for use as pension. 1 7. The draft Heads of Terms were attached to that email by Mr Pratt (120).[18]The draft, dated 8 March 2021 , read: “Heads of Terms Between Rollandene Limited (RL) and Mansfield Care Limited (MCL) MCL is to build a new purpose built Care Home facility in Haddington. Building should commence in late summer/early Autumn 2021, building work is anticipated to taken 12-15 months with an expected opening date of September/October 2022. On opening of the facility MCL undertakes, immediately, to: 1. Take over all employees under TUPE regulations 2. Take over the care of all residents 3. Release the property known as Adam wood for sale/disposal The payment by MCL will be calculated as follows: a) For all residents paying privately a figure of £17, 500 b) For all social work funded residents a figure of £10,000 In any event the maximum payable under this arrangement will be no greater than £200,000 and no less than £140,000. For the sake of clarity Mrs M Wood will not be one of the transferred employees. Discussions are ongoing regarding the possibility of one of the wings in the new facility being devoted to residents suffering from dementia in 10 recognition of the work achieved at Adamwood. ”[19]Mr Pratt forwarded the draft Heads to Mr Duncan on 9 March 2021 (121) and invited him to amend the document. He said he would speak to Mr Hume but could not see any difficulty with “moving to a contract position”. Mr Duncan made some amendments to the draft (124) and replied on 11 March 2021 attaching the amended and clean versions (127). He sought to clarify that the 2 nd respondent would acquire the business of the 1 st respondent, and that the payment would be for the acquisition of the business. He also clarified that the payments for residents would be in respect of each resident.[20]Mr Pratt confirmed that he saw no problems with the amendments, and forwarded the document to Mr Hume so he could review it (129).[21]On 15 March 2021, Mr Pratt emailed Mrs Wood and Mr Duncan, with a copy to Mr Hume, to say that “Andrew is in agreement to what is drafted. We can move to contract Just as quickly as you wish. "(130).[22]Having received this email, Mrs Wood did not proceed with the sale of the business to Simply. Mr Duncan emailed Mr Pratt and asked him to revert to Mr Hume on the basis that it would normally be for the purchasers’ solicitors to prepare the draft agreement, though he understood that Mr Hume may wish to carry out some due diligence first.[23]Mrs Wood was of the view that she could trust both Mr Pratt and Mr Hume, and therefore that there was no rush to conclude the full agreement. It is clear from the evidence that at this point, in March 2021, Mrs Wood believed that an agreement in principle had been reached, and that Mr Hume’s perspective was that nothing had as yet been agreed. In his evidence he said that there was an agreement in draft, and not Heads of Terms.[24]However, a development took place in May 2021 , when Adamwood was inspected by the Scottish Fire & Safety Service, and on 25 May 2021 an 10 Enforcement Notice was issued to Adamwood regarding some safety issues in the Home. On 28 May 2021, the Care Inspectorate issued a letter of serious concern to Adamwood following receipt of the Scottish Fire & Safety Service Enforcement Notice, which had requited significant remedial action, including replacing all windows with reinforced glass. The 1 st respondent required to undertake to carry out the remedial work in compliance with the Enforcement Notice.[25]Further, on 1 June 2021, the Care Inspectorate undertook an unannounced inspection following the letter of serious concern, following which they produced a report (21 Off). Using a 6 point scale where 1 is unsatisfactory and 6 is excellent, the report found that the leadership, setting and Covid-19 care and support all merited a mark of “2 - weak”.[26]The report emphasised that although the improvements made had met the letter of serious concern, the sustainability of those improvements required to be demonstrated. The Care Inspectorate said that people’s safety was compromised because of poor quality assurance processes and a lack of management oversight, and because of poor maintenance of the Home, particularly relating to reducing risks of fire and the need to upgrade doors and glass.[27]Mrs Wood was extremely disappointed about these ratings given by the Care Inspectorate.[28]Mrs Wood was then asked, in early June, to attend a meeting at the headquarters of East Lothian Council, who provided funding for some of the residents in Adamwood.[29]She found this a very stressful time, and accordingly, although she considered that the Home was safe and that steps had been and would be taken to address the points made in the Care Inspectorate report, she had to decide whether or not to continue running the Home. She contacted Mr Pratt and informed him of the terms of the report. As a result, a meeting was arranged between Mrs Wood, Mr Pratt and Mr Hume in order to discuss how to proceed.[30]Mrs Wood’s position was that the terms of the Care Inspectorate report did not mean that the Home was going to close. In his evidence, Mr Hume repeatedly stated that the Home was going to close, and that Mrs Wood had to get out of the business with dignity.[31]The terms of the Care Inspectorate report did not state that the Home required to close. It made some strong criticisms of the running of Adamwood, and it issued an Enforcement Notice, but action was expected of the business running Adamwood in order to address the terms of the Notice.[32]Mr Hume suggested in cross-examination by Mr Walker that he was aware that Adamwood was going to close because Mrs Wood had told him so. This was not put to Mrs Wood by the solicitor for the 2 nd respondent, but we did not find this to be believable. That statement was completely inconsistent with both the terms of the report and the evidence of Mrs Wood, which we found to be credible.[33]In any event, it was clear that Mr Hume had received a similar rating for one of the Homes for which the 2 nd respondent was responsible, in Troon, but in respect of which a 5 year plan was being sought by the Care Inspectorate (165). Mr Hume also confirmed, in cross-examination by Mr Walker, that he had a care home in Jedburgh which was awarded a 1 rating in 2019, but which was not closed. It was or should have been clear to Mr Hume that a 2 rating did not mean that Adamwood had to close.[34]Mrs Wood gave evidence that she met with Mr Pratt and Mr Hume on an uncertain date in early June, prior to 7 June, at which it was agreed that the staff and residents would be transferred to 2 Homes run by the 2 nd respondent on the same terms as had been agreed in the Heads of Terms.[35]Mr Pratt’s evidence was that he was away on holiday for the 1 st 10 days in June, and that he was never in attendance at a meeting with Mr Hume and Mrs Wood. He also said that he would not have attended such a meeting, on the basis that he had a conflict of interest, namely that as well as being the 1 st respondent’s long-standing accountant, he was also a director of the 2 nd respondent, a fact of which Mrs Wood only became aware at around this time.[36]Mr Hume did not give evidence about a meeting conducted at that time with Mrs Wood and Mr Pratt, but about a meeting on 7 or possibly 8 June 2021 , at which Mrs Wood’s son Kenneth was also present. Mr Hume was not asked about an earlier meeting in either examination in chief or in cross-exa m i nation .[37]There was a meeting, therefore, on 7 or 8 June at which Mrs Wood, Mr Wood (her son), Mr Hume, residents’ families and staff were in attendance.[38]The Tribunal is left to conclude that there was no meeting involving Mr Hume, Mr Pratt and Mrs Wood, but that there was a conversation between Mrs Wood and Mr Hume prior to the meeting on 7 or 8 June, because there had been an indication by both Mrs Wood and Mr Hume that the residents would be taken on by the 2 nd respondent. It is not clear how that conversation took place, but it must have been before the meeting of 7 or 8 June, which would not have been arranged without some form of arrangement between Mrs Wood and Mr Hume. Mrs Wood conceded in cross-examination that she may have had a phone call with Mr Pratt, though continued to insist that there was a meeting involving the 3 of them.[39]Mrs Wood attended the meeting of 7 or 8 June with her son, Kenneth. Mr Hume was in attendance together with Lucy Duffin, the 2 nd respondent’s Operations Manager, and Margaret Russell, the Matron of Belleville Lodge. Belleville Lodge and Pine Villa were the 2 Homes run by the 2 nd respondent to which it was proposed that the residents would be moved, on the basis that both were within approximately 20 minutes’ drive of Adamwood. The meeting took place at Belleville Lodge.[40]None of the staff who worked at Adamwood were present at that meeting.[41]There was a divergence between the evidence given by Mr Hume and Mrs Wood about what was said at that meeting.[42]Mrs Wood stated that her son, Ken, asked Mr Hume if there would be a written agreement to confirm the basis upon which the residents would move to the 2 nd respondent’s Homes, to which Mr Hume replied that there would be no written agreement because they needed to move the residents by the end of the month; she also stated that Mr Hume said that all the staff at Adamwood would be offered jobs in the 2 Nursing Homes on the same terms and conditions upon which they had previously been employed, in order to ensure that there was continuity of care for the residents after they moved. As a result the staff would be moved to the 2 Homes where the residents were to be placed. Finally, she said that there was a discussion about the transfer of certain assets, including beds, hoists and other equipment (set out at 134).[43]Mr Hume stated that he gave Mrs Wood reassurance at the meeting that the standard of care which the residents and their families could expect would be very high; but that he did not say he would take care of redundancies should they arise as he would not discuss financial matters in front of his managers. He said he may have told her that the 2 nd respondent would offer the staff jobs, but that there was no exchange about a written agreement with Ken Wood, nor any discussion about property.[44]Ken Wood’s evidence was that there was a discussion about staff moving in order to ensure continuity of care for the residents, and that he recalled Mr Hume saying that he would take all the staff, or all the staff who wanted to transfer. He also said that Mr Hume stated that he had staff who dealt with redundancy and that Mrs Wood had no reason to worry about redundancy. He confirmed that there was a discussion about property, including beds, mattresses and other stock.[45]Lucy Duffin’s evidence was that there was a discussion about the move of the residents, and that reassurances were offered to Mrs Wood about how the 2 nd respondent would “support the process”. She denied that there were any discussions about roles to be offered to staff, about redundancy or indeed about the staff at all.[46]The Tribunal concluded that there were discussions at that meeting about the staff. Ms Duffin’s evidence was characterised by a reluctance to engage with the staffing issues, and a focus upon the care of the residents and dealing with the families. Mr Hume, as we comment below in our observations on the witnesses, was not an impressive witness, and we did not consider his evidence to be completely believable. He simply denied that he had said anything about the staff, assets or about money, and that was flatly contradicted by both Mrs Wood and Ken Wood, whose evidence we preferred. ............................................................[47]What is clear, however, is that Mrs Wood emerged from the meeting feeling reassured that not only would the residents be taken over to the 2 nd respondent’s care homes, but that the staff would also be looked after. In her own evidence, she did not state, though, that Mr Hume assured her that he would take care of any redundancy situation, and we do not find that that was said in the meeting.[48]Following the meeting, on 10 June 2021, Mrs Wood emailed the Care Inspectorate, East Lothian Council and the City of Edinburgh Council (135): “Good afternoon all, It is with the heaviest of hearts I inform you that I have submitted my resignation of registration via care inspectorate portal. Please accept this email as my intent to close Adamwood Nursing Home. I have suggested a closing date for the service of 24 th June however, it is my intention to support the residents to move from 17th June 2021 providing agreement of the families. As you may be aware, I have arranged with Mansfield Care Ltd to provide accommodation and support for all residents and employment for all staff. For full details, this is within the form submitted to the Inspectorate dated 10/06/2021. Discussions with families, staff and residents have been arranged for Monday 14th, supported by Mansfield Care. Additional meeting time is arranged for Tuesday 15th June to support any queries. If you have any queries, please contact [telephone number]. Please bear in mind, I am only one person, I would very much appreciate a coordinated response. Regards, Mairi Wood”[49]Alison Vikis, of East Lothian Council, emailed Adamwood on 11 June (141) to ask what arrangements had been put in place, given the Council’s responsibility to ensure the appropriate placing of East Lothian residents. Mrs Wood forwarded the email to Lucy Duffin and asked for her advice (141). Ms Duffin replied with a suggested email to send to the Council (140): “Hi Mairi, Below is a suggested email to send to Alison - it might be helpful to cc me in too. Dear Alison, Thank you for your email. The arrangements for the residents providing family agreement are as follows: Thursday 17th - Mansfield Care will support the residents to move over to Belleville Lodge and Pine Villa. I attach a list of proposed residents to each home. I will have support from the Adamwood staff and support from Mansfield staff to ensure the physical transition is smooth and comfortable. The staff from Adamwood will move over to Mansfield Care therefor providing continuity of care and support from friendly, known staff to the ladies of Adamwood. The arrangements for meeting with families and staff are made for Monday 1 7th, I will be supported by Mansfield to do this. Mansfield owner, Andrew Hume will be available at Adamwood Tuesday 18th for any questions, or queries. The families are invited to view the homes via video or in person adhering to covid regulations. Financially and contractually, the residents will remain on the same terms or better. This has been agreed with Andrew Hume. The same applies to the staff. If you wish to talk to Mansfield Care about these arrangements, please contact Lucy Duffin [telephone number]. She /s aware of your queries. Kind regards Mairi Wood”[50]There is no evidence that that email was ever sent to East Lothian Council. Essentially, Mrs Wood seemed to believe that Ms Duffin would send it to the Council, and Ms Duffin believed that it was for Mrs Wood to do so. As a result, the email was not sent.[51]In June 2021, there were 29 staff working at Adamwood. Mrs Wood described them as a mixture of 17 full time or part time employees, and 1 2 bank staff.[52]In mid-June, Mr Hume met with the residents’ families to confirm the details of the Homes to which their relatives were to be moved. He described the families as being shocked that their relatives were being moved at such short notice, though he sought to reassure them, to give them the choice of the 2 Homes to which they were to be moved and to encourage them to visit both Homes so that they could assess which would be more suitable. He also required to ensure that East Lothian Council and the City of Edinburgh Council were content for the residents which they funded to be moved to the 2 nd respondent’s Homes.[53]The staff at Adamwood had become aware of rumours that the Home may be closing, at around the time when the Fire Inspectorate report was issued. Laura Smith, one of the lead claimants and a Senior Charge Nurse, asked Mrs Wood whether or not it was true that the Home was closing, to which Mrs Wood replied that it was not. Since work was being done to improve the Home, Ms Smith herself understood that perhaps it was not going to ctose. -..........................[54]Mrs Wood asked some of the staff, who were on duty, to come to a meeting, at some point before 22 June, and told them that the Home would be closing and the residents transferring to new Homes operated by the 2 nd respondent. The staff were surprised by this news at this meeting, notwithstanding the rumours which had been circulating.[55]Following that meeting, Ms Newman, a member of the Unison Trade Union, contacted her Unison representative, Carolyn Casey. On 22 June 2021 , she and a number of other Unison members went to meet with Ms Casey at a location close to Adamwood, and then as a group, led by Ms Casey, they went to Adamwood and asked to meet with Mrs Wood. Mrs Wood agreed to meet them, and in order to do so, they went into the garden and met outside. There were approximately 10 staff at that meeting. Mrs Wood was unable to give any detailed information as to the plans for the staff as she had not been made aware of the 2 nd respondent’s precise intentions at that stage, although she understood that all staff would be offered positions by the 2 nd respondent.[56]Ms Casey then wrote to Mrs Wood on 23 June 2021 (201). She referred io to a letter sent and delivered on 17 June 2021 , but no copy of any such letter was produced to the Tribunal. However, the text of the letter appears to incorporate the terms of the previous letter, as below.[57]In her letter, she went on: “We request a response to previous communication unfortunately we have not received any contact written or verbal from yourself. Members of your staff are also Unison members and are looking for a response. This is an extremely unsettling time and the impact on the Adamwood staff cannot be underestimated. Hence again we request communication with yourself to achieve an outcome. Letter below as previously sent. Unison members have contacted myself for advice and support when informed verbally~at the end of ~a shjff on ihe l ltl?~june that the— care home• • will be closing and potentially as soon as the 24th of June 2021. This has come as a shock to our members and some of our members 25 have not been informed as yet. This is of course a concern with no consistency with what is being verbalised to some staff and not others. No written exchange has been received by any of our members. I write to request a direct response for our members and engagement with myself as their trade union representative. As you are aware we were able to meet yesterday, this was arranged with yourself with the members but you appeared confused at my attendance, although I am led to believe this had been discussed and agreed with yourself. At our brief meeting you were unclear re any date for closure or possible plans re Redundancy. 5 As I attempted to discuss yesterday there is an obligation to meet with your staff and myself as a trade union representative. We would wish to seek clarity on the process and plans for closure you are using, you did voice yesterday that you are not involved with any trade union and felt this was not required. You did accept a note of my name mobile and io email. You also stated yesterday that all staff will be offered a position with Mansfield Care but this would be in one of their already established homes and not in Adamwood as residents are being moved to other care homes over the next week or so. This in our opinion does not mitigate you 1 5 as the present employer. In our opinion this is a redundancy situation and you have legal responsibility under the redundancy regulations. We are advised you are an employer of over 20 staff and must follow a collective consultation. 1. You require to state the reasons for redundancy 2. Advice (sic) us of number and category of redundancy ......................... 3,... Number of employees in each category ........................................ 4. How you plan to select employees for redundancy 5. How you will carry this out 6. How you plan to calculate the redundancy payments. 25 As we also discussed yesterday this of course is an extremely emotional and upsetting time for your members. I understand this is also the case for yourself but clarity is required re process that is being used and clear consistent engagement with staff. Unison is supporting the majority of your employees and are looking for full involvement in this process. 1 will await your reply at your earliest convenience. Yours sincerely, Carolyn Casey CPN"[58]In her evidence, Mrs Wood stated that she did not recall seeing the letter, nor did she recall Ms Casey.[59]On 24 June, Mrs Wood conducted a meeting with the staff who were on duty at the time, in the conservatory of Adamwood. The individuals who were present at that meeting were Leah Newman, one of the lead claimants; Kerry Brash; Janet Capaldi; Joyce Radzynski; Jackie Ross; Christina Smith; Kate Hogg; Roberta Wanless and Helen Casey. Lucy Duffin was also in attendance. Mrs Wood believed that all of the staff at that meeting already knew that Adamwood was closing. Ms Duffin explained to the staff that they would be transferring to one or other of the 2 Homes operated by the 2 nd respondent, namely Belleville Lodge or Pine Villa, and that they would be looking after the residents from Adamwood. They could choose according to the location which was closer to their own home.[60]Mrs Wood was upset at the meeting, as were the staff. Leah Newman, who was in attendance at the meeting, said that the news came “out of the blue”. They were told that the Home would be closing within the next few weeks, depending on how long it took to move the residents to their new places of residence. 61 . Ms Newman said at that meeting that she did not want to move to either of the new Homes, as she did not wish to travel further than she was currently travelling, that she had family commitments (particularly to her son) and that she wished to work in a more homely environment as she had at Adamwood.[62]The other staff who were present at the meeting were generally unenthusiastic about the prospect of moving to another Home and indicated that they did not wish to do so.[63]The residents were moved out over the next week or so, and the final 5 resident left Adamwood on 29 June 2021 . Mrs Wood confirmed this to be the case to Janet Smith at the Care Inspectorate on 29 June 2021 (144). Ms Smith responded that day to confirm that she would cancel the registration of the Home on the following day. She expressed sadness at this development, and said that she fondly remembered her “lovely visits to Adamwood”.[64]On 29 June 2021, Sharon McGowan emailed Mr Hume a list of the staff from Adamwood, with approximate length of service and contract type, highlighting in yellow the staff who were “transferring to Mansfield Care” (143). The staff list was produced at 149.[65]The list set out the details of the staff as follows: “Christina Smith Staff Nurse Bank Contract Joyce Radynski Staff Nurse Permanent Contract 24 hours/week 30 years service Laura Smith Staff Nurse Bank Contract Kate Hogg Staff Nurse Bank Contract Angela Conway Staff Nurse Bank Contract Moira Peters Staff Nurse Bank Contract Sally Dickson Staff Nurse Bank Contract Demi Gray Staff Nurse Bank Contract Marie Cumming Staff Nurse Bank Contract Vicky Brash Staff Nurse Bank Contract Francis Buddie Staff Nurse Bank Contract Jacqueline Ryan Staff Nurse Bank Contract Janet Capaldi Care Assistant Permanent Contract 36hrs/week 28 years service Leah Newman Care Assistant Permanent Contract 32.5hrs/week 10 years service Kerry Brash Care Assistant Permanent Contract 1 2hrs/week 2 years service Lynne Fairgrieve Care Assistant Permanent Contract 38hrs/week 4 years service Mariola Jeziorska Care Assistant Permanent Contract 38hrs/week 5 years service Liz Brennan Care Assistant Permanent Contract 8hrs/week 30 years service Ina Shankie Care Assistant Permanent Contract 38hrs/week 3 months service Kayley Hughes Care Assistant Permanent Contract 38hrs/week 8 months service Joanna Mostowik Care Assistant Bank Contract Jackie Ross Cook/Domestic Permanent Contract 31 hrs/week 12 years service Aga Stopa Care Assistant Permanent Contract 38hrs/week 10 months (mat leave) Roberta Wanless Care Assistant Permanent Contract 38 hours/week 12 years service Anna Wojcik Care Assistant Permanent Contract 38hrs/week 4 months service Helen Casey Cook Permanent Contract 40hrs/week 12 years service 5 (sick leave) Steven Falconer Chef Permanent Contract 50hrs/week 3 years service Ted Wojciechowski Handy Man Permanent Contract 40 hrs/week 4 years service 10 Sylwia Zielinska Domestic Permanent Contract 20hrs/week 2 months service[66]The names highlighted in yellow on the staff list provided to Mr Hume are shown in bold above.[67]Laura Smith commenced employment at Adamwood approximately 20 years ago. She qualified as a Registered General Nurse (RGN) in 1997. At the point when she joined Adamwood, Ms Smith was working as a registered nurse in the Breast Unit at the Western General Hospital, Edinburgh. A colleague informed her that Mrs Wood was looking to employ qualified nurses at Adamwood. She applied for a post, and was appointed following interview. At that time, she required to earn extra money on top of her main employment at the Western General Hospital in order to afford renovations on her flat. Throughout her employment with Adamwood, her main employment remained with the NHS at the Western General Hospital.[68]Ms Smith did not receive a written statement of terms and conditions of employment from the 1 st respondent.[69]In Adamwood, each shift required to have an RGN working so as to take responsibility for the nursing care of the residents, including initiating treatment or medical assistance, ensuring the staff were working to the highest standards and maintaining the safety of the residents as the highest priority. The RGN would also require to supervise the work of the carers and work together with them to attend to the needs of the residents.[70]Ms Smith would provide Mrs Wood with a list of dates when she would be available over a period of time, and she would put the “off duty” together. The off duty is a document which is completed with the rotas for each day. Mrs Wood had a responsibility to ensure that each shift was covered with adequate numbers of staff, including an RGN. Mrs Wood herself would cover some shifts as the RGN. When the off duty, or rota, was established, it would be put up in the duty room, and Ms Smith would complete all the shifts allocated to her, so far as possible, to complete the off duty. 71 . A sample of the off duty was produced in the supplementary bundle at p1 (S1). It was referred to as a “timesheet”. However, it was understood to be an off duty chart showing the scheduled cover for each shift, prepared in advance of the relevant shifts, rather than a timesheet denoting the hours actually worked afterwards.[72]Each of the names on the left hand column on S1 relates to an RGN, including Ms Smith, for June 2019. She was marked down for 2 nightshifts, on 7 and 25 July. S2 was a copy of the off duty for July 2019, apparently showing that Ms Smith did no shifts during that month. Ms Smith was surprised to see this, and in evidence suggested that it may have been incomplete, as there were no months during her time with Adamwood in which she did no work. There was a period before this that she was unable to work due to illness, but she had recovered by July 2019 and therefore could not understand why the off duty showed her as having no shifts. In August 2019 (S3), Ms Smith was noted as covering 7 nightshifts, on 5, 6, 18, 19, 22, 25 and 29 August. The pattern for Ms Smith appears to have been relatively similar throughout the succeeding months, and in June 2021 she was on the rota to cover 7 nightshifts (S1 1 ).[73]Ms Smith was provided with payslips by the 1 st respondent (S1 2ff). these demonstrate that the 1 st respondent paid her each month subject to the deduction of PAYE tax and national insurance, and also that she was paid holiday pay every 3 months according to the number of hours which she had worked in that period. Each month also saw the deduction of a sum in respect of her employer’s pension. No payslip was produced in respect of July 2019.[75]When asked about the terms of 149, which describes her as a Staff Nurse with a bank contract, Ms Smith specifically said that she did not wish to 10 be a bank nurse or an agency nurse as she wanted stability and certainty about her income, with a degree of regularity of the shifts she received. She was aware that if she had registered with the NHS nurse bank, she could have been moved around different locations and that she was not guaranteed work. In working for the 1 st respondent, she was able to provide her available shifts in advance, and be aware that Mrs Wood would require her to do those shifts.[76]If she were on the off duty to carry out a shift on a particular date, she made every effort not only to carry out that shift, but also to cover any further gaps in the off duty which she was aware of, in order to provide that assistance to Mrs Wood which she could. There were restrictions on her availability to work for the 1 st respondent on the basis that she was employed by the NHS to work at the Western General Hospital, which . always had to be her priority; ............................................................................[77]On the termination of her employment, she was provided with a P45 by the 1 st respondent (S21 ) dated 9 July 2021 .[78]Ms Smith was very concerned to learn that Adamwood was closing, and to have 2 weeks’ notice to make a decision about her future. She decided that she would contact the Operations Manager for the 2 nd respondent, and was referred to Margaret Russell to discuss any vacancies at Belleville Lodge. Ms Smith met with Margaret Russell, completed an application form and a PVG check form, and was interviewed. Ms Russell agreed that she could accommodate Ms Smith’s desired shifts, and offered her the position of RGN at Belleville Lodge.[79]Ms Smith accepted the position, though with some reservations as she had not had the opportunity to see the whole of Belleville Lodge, owing to Covid restrictions. Her pay was to be at a slightly higher rate than that which she was paid by the 1 st respondent, though she was not to receive payment for breaks as she had at Adamwood. Ms Smith worked at Belleville Lodge for some 4 weeks but decided to leave at the end of the rota to which she was committed. She had by then found that the Home was much larger than Adamwood and decided that she did not wish to continue working there.[80]Following her departure from Belleville Lodge, Ms Smith experienced a period without the additional employment over and above her NHS position which she had grown accustomed to. She found new employment at a Nursing Home in Cramond, Edinburgh, at a higher rate of pay than that offered by either the 1 st or 2 nd respondent.[81]Leah Newman commenced working at Adamwood as a Care Assistant in September or October 2009.[82]She was interviewed by Mrs Wood, shown around the Home and offered the position subject to a clear PVG certificate. She was initially deployed to different shifts but due to her personal circumstances she changed to working only day shifts by the point when the Home closed.[83]Ms Newman worked the shifts which she was allocated by Mrs Wood. Occasionally she would be unable to carry out her shift, due to illness, or if an issue arose in her personal life, she would seek to swap with one of her colleagues.[84]By the time her employment at Adamwood ended, Ms Newman was working 32.5 hours per week, on a permanent contract.[85]Ms Newman did not work in any other employment throughout her time working at Adamwood.[86]Her last shift at Adamwood was on 29 June 2021. She commenced working on the NHS Lothian Nurse Bank on 15 October 2021, having been persuaded by her trade union representative that it would represent a good opportunity. She now works when she is able to, based on the shifts which are offered to her on the Bank.[87]She was aware that others were taking up the opportunity to work with the 2 nd respondent after Adamwood closed, but having been happy in a small environment at Adamwood she was not attracted to the prospect of working for a larger company and she took no steps to inquire as to whether or not she would be able to work in one of the 2 nd respondent’s io Homes. In addition, she did not want to travel to either of the Homes.[88]When working with the 1 st respondent, the claimant received payslips ( 1 94ff) She was paid the same gross amount each month (£1 ,295.67 until 30 April 2021, and £1,366.08 thereafter); her pay was subject to the deduction of PAYE tax and national insurance; she was a member of the 1 st respondent’s pension scheme, and so deductions in that respect were taken from her pay each month; she was paid in respect of sick leave (for example, in April 2021 (197), albeit that this was statutory sick pay rather than contractual sick pay); and she worked a consistent pattern of 7 days on and 2 days off, followed by 8 days on and 4 days off.[89]When asked if she felt obliged to work the shifts she was given, Ms Newman answered that she wanted to work those shifts. When pressed on the matter, she said that —she-did—not “feel obligated” to do those shifts. The Tribunal interpreted that exchange as meaning that she was content and did not feel forced to carry out the shifts given to her, but not that there was an optional element to it. It seemed to us, very simply, that the use of the word “obliged” carried with it a meaning which Ms Newman did not understand in the way it was being put to her. Submissions[90]The parties presented submissions to the Tribunal. A brief summary of those submissions follows, but the parties may be assured that the Tribunal read carefully and took the parties’ submissions both written and oral into account in reaching its decision.[91]For the 1 st respondent, Mr Walker presented a very lengthy and full submission, to which he spoke briefly.[92]He submitted that there was a transfer of an undertaking under from the 1 st to the 2 nd respondent under Regulation 3(1 )(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (TUPE). He also maintained that there was a service provision change from the 1 st to the 2 nd respondent under Regulation 3(1 )(b) of TUPE.[93]He referred to 10 employee claimants who were entitled to be transferred under TUPE to the 2 nd respondent. They included Leah Newman, one of the lead claimants in this litigation.[94]The relevant transfer took place, he submitted, over a period of around one week up to 29 June 2021 . As a result, there was no liability on the part of the 1 st respondent to any of the employee claimants, and no redundancy situation.[95]He distinguished the situation of the bank staff, which included Laura Smith, the other lead claimant. He argued that they were not employees of the 1 st respondent, and therefore lacked the right to transfer under TUPE to the 2 nd respondent; or that if they were employees, they had the right to transfer. In any event, not being employees, they have no right to claim unfair dismissal or statutory redundancy pay from the 1 st respondent.[96]There was no mutuality of obligation between the 1 st respondent and Laura Smith. She and her colleagues, including Angela Conway, were casual workers.[97]Mr Walker argued that Laura Smith only worked 2 shifts in June 2019 and none in July 2019, and no explanation was given as to why that was.[98]There was no failure to consult in breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) as they was no failure to consult collectively. There was no proposal to dismiss 20 or more employees at 1 establishment within a 90 day period as there were only 17 employees employed by the 1 st respondent during the material time.[99]Mr Walker then referred to another claimant, Kayley Hughes, whose failure to comply with Tribunal Orders should see her claim struck out.[100]The other 9 employees, he submitted, were not unfairly dismissed. There was no requirement for a selection process as the Home was closing down, and the 1 st respondent informed the employees that the 2 nd respondent would be offering them jobs on the same terms and conditions other than location. Leah Newman declined this offer of employment with the 2 nd respondent when it was raised at the meeting on 16 June 2021. 101 . The bank staff were also informed that they would be offered employment with the 2 nd respondent. Angela Conway and Laura Smith both accepted jobs with the 2 nd respondent.[102]If the Tribunal holds that any of the claimants were dismissed by the 1 st respondent, he submitted that the dismissals were fair.[103]If the Tribunal holds that there was no TUPE transfer and/or that bank staff claimants were employees of the 1 st respondent under the Employment Rights Act 1996, then a further Hearing may be required to determine such claims other than those relating to Angela Conway, Laura Smith and Leah Newman.[104]Mr Walker made a number of suggested findings in fact, and then made submissions as to the credibility and reliability of the evidence given.[105]He argued that the Tribunal should find that Mrs Wood was a credible and reliable witness, and should take into account that her evidence in chief was presented by way of witness statement, that that statement was not challenged on many of the main aspects of the case, and that as a 79 year old person she had to give her evidence in trying circumstances, including external noise from roadworks which necessitated the adjournment of the Hearing. He also pointed out that some of the evidence given by witnesses for the 2 nd respondent was not put to Mrs Wood in her evidence, and therefore should not be taken into account in reaching findings in fact.[106]Mr Kenneth Wood gave evidence which was credible and reliable.[107]Mr Walker challenged the evidence of Lucy Duffin as being inaccurate in some respects, and inconsistent in her recollection of what happened at certain meetings.[108]The evidence of Sharon McGowan was vague and of questionable relevance, he said. Mr Pratt’s evidence was tainted by his failure to disclose to Mrs Wood the clear conflict of interest which he had between the two respondents given his previous involvement with both.[109]Mr Walker reserved his strongest criticism for the evidence of Mr Hume, and insisted that it was not credible or reliable in several material respects. He pointed out examples in which Mr Hume’s evidence was contradicted by contemporaneous written evidence.[110]He also submitted that Mr Hume prevaricated by making statements which did not address directly the question which he had been asked.[111]Mr Walker then summarised the legal provisions which were relevant to the Tribunal’s analysis of the case, and invited the Tribunal to find that the 1 st respondent was not liable for any of the claims made.[112]Mr Bathgate, for the 2 nd respondent, observed that the claimants’ pleaded case is only directed against the 1 st respondent, and not his client. He referred to Rule 36 of the Employment Tribunals Rules of Procedure, and pointed out that where 2 or more claims give rise to common or related issues, and the Tribunal makes a decision on those common or related issues, that decision will be binding on all parties.[113]He pointed out that there are some matters of evidence which are common or related issues, but some are individual to each of the claimants. For example, if the Tribunal were to find that there was a TUPE transfer, evidence would need to be led in order to determine whether or not any or all of the claimants objected to the transfer.[114]He argued that while Mr Walker suggested that matters which were not put to Mrs Wood should not be admissible, the correct view of this is to determine the weight to be attached to the evidence, not its admissibility. This is not a case before the Inner House but a Tribunal hearing trying to find out what had happened.[115]He submitted that Ms Smith was not an employee, and that there was no mutuality of obligation between her and the 1 st respondent. There requires to be that irreducible minimum to establish employment status, and it is not there according to the evidence. As a result, Ms Smith’s case should be dismissed. If the Tribunal were not to agree with that proposition, Mr Bathgate said that Ms Smith became an employee of the 2 nd respondent and accordingly there was no claim for unfair dismissal against his client.[116]So far as Ms Newman was concerned, he adopted Mr Walker’s submission in relation to her status as an employee.[117]He maintained that the necessary minimum of 20 employees has not been reached in this case, and accordingly the protective award claim must fail.[118]Mr Bathgate went on to make more detailed submissions about whether or not there was a TUPE transfer or a service provision change. There is insufficient evidence to demonstrate that any affected employee was allocated to look after any particular resident. There needs to be evidence of an organised grouping of employees carrying out activities in relation to the particular client, and therefore there was no service provision change in this case.[119]He observed, with regard to a TUPE transfer, that the Tribunal needs to consider whether there was an economic entity which transferred, and whether it retained its identity on transfer. It is a question of fact for the Tribunal to determine in relation to each question. In his submission, any entity did not retain its identity but was subsumed within the identity of the 2 nd respondent.[120]He also argued that there was no significant transfer of goodwill or assets, but there was a business arrangement for the transfer of residents. No TUPE transfer has been established.[121]Mr Bathgate submitted that the evidence demonstrates that even if there were a transfer, Leah Newman clearly objected to it. Evidence would be required from the other claimants in order to determine that question in relation to each of them.[122]If Ms Smith were to be found to have been unfairly dismissed, any compensation should be restricted to a basic award since she resigned from the 2 nd respondent’s employment when she had no job to go to and found another job within a month.[123]For the claimants, Mr Haywood presented a written skeleton submission, to which he spoke. 1 24. He submitted that the question of whether the claimants objected to the transfer is not a common matter between the claimants. However, it was clear that k4s Newmsin did not know ...jwticit. .she..was ...todo vuittrregard to TUPE.[125]He submitted that while Mrs Wood was an impressive person, and all the respondents witnesses gave their evidence in challenging circumstances, that does not make them immune to criticism. The absence of documentation is a distinctive feature of this case. No members of the 1 st respondent’s staff ever had a written contract. The respondents have become entrenched in their positions, and their evidence, he argued, generally lacked reasonable concessions.[126]He made a number of observations about the evidence given by the parties. The consequences which normally follow a TUPE transfer do not appear to have done so here. Something has gone badly wrong if a transfer did occur.[127]Either there was no transfer, and the staff were made redundant by the 1 st respondent, or there was a transfer and they were dismissed by either of the respondents in consequence of the transfer, and therefore they were automatically unfairly dismissed.[128]It cannot be maintained that if the transfer did not happen, there was still consultation. It does not accord with the evidence.[129]Mrs Wood repeatedly said that she did not require to close Adamwood. Mr Haywood suggested that there were surely more options for her to address the needs of the staff rather than to argue with the other respondent.[130]The claimants maintain that while the respondents suggested that there were permanent and bank staff, this was not a distinction that existed in practice.[131]Mr Haywood submitted that the suggestion that the staff were employees only for each shift is inconsistent with their pay being administered over each month. Even though the month of July 2019 is missing from the payslips, holiday pay still accrues and since some rights carry over from month to month, that is inconsistent with a single shift contract.[132]The nub of the case, he said, is whether there existed the irreducible minimum of mutuality of obligation. This is not the same situation as a bank worker on the NHS bank, but a situation where an individual worked in a single location for 20 years. In terms of the formality of the arrangement, a paper boy would be at one end of the spectrum, but Ms Smith in Adamwood was at the other. There was a sufficiently formal relationship to demonstrate a course of dealing, and in addition, there were staff who had long service and a credible sense of loyalty to their service. Adamwood was dependent on a regular crop of RGNs, 1 of whom was said by them to be a permanent member of staff.[133]Mr Haywood pointed to the evidence of Ms Smith, in which she spoke about regular shifts and her sense of obligation, that due to loyalty she and other staff tried to keep the care home going and that she depended upon the income. It is inconceivable that she would have continued to work for 20 years without a steady stream of income to rely upon.[134]There was also a significant degree of control over the RGNs. There is no doubt, he submitted, that Mrs Wood was in charge and that the nurses had to attend at night so that the Home could continue to operate. They were integral to the business, not coming in from the outside. Ms Smith asked who her boss would be if not Mrs Wood - this is not analogous to the NHS bank.[135]There were occasions on which shifts were not worked, but that is not dispositive. They would cover each other as a team when there was illness. This is different from substitution.[136]He went on to submit that if the Tribunal were to agree that the RGNs were employees, as at June 2021, the 1 st respondent had more than 20 employees and they were obliged to consult them about redundancy, more than 30 days prior to dismissal. That did not happen. He suggested that it may not be entirely possible to say precisely when each meeting occurred.[137]The 1 st respondent says that there was no recognised Trade Union and therefore the role of the Trade Union representative was a red herring. However, there is a requirement to allow for the election of a representative within the body of affected employees, and there is no evidence that that happened.[138]Mr Haywood submitted that there was, therefore, a failure to consult the affected employees. The protective award should be taken at its highest unless there is any mitigation, and in this case it is difficult to see any mitigation arising from the evidence. Observations on the Evidence[139]It is appropriate, when assessing the divergent evidence given by different witnesses in this case, to make some observations about the evidence and the witnesses presented.[140]Mrs Wood’s evidence largely came from her witness statement, the only witness to be afforded this means of giving evidence. We found Mrs Wood to be generally a good and sincere witness, worthy of the clear respect in which she was held by her staff. There were aspects of her evidence which were rather vague, which is understandable both due to the passage of time and her observable frailty. In our judgment, Mrs Wood’s intentions were unimpeachable, and to a large extent her understanding of the circumstances in which she found herself were as a result of advice and representations made by others, including her former solicitor, Mr Pratt and Mr Hume. We believed Mrs Wood to be seeking to assist the Tribunal by telling the truth to the best of her ability, and we accept Mr Walker’s submission that there were a number of areas in which her evidence was simply unchallenged, or points were not put to her.[141]Kenneth Wood’s evidence was of relatively brief compass, but we found no reason not to believe what he told us. His evidence requires to be treated with a certain amount of caution as he did not have a significant involvement in the matters giving rise to these claims. However, he was helpful insofar as he was able to be.[142]Lucy Duffin and Sharon McGowan, who were both called as witnesses for the 2 nd respondent, gave evidence which was not, generally, very clear or of great assistance. Ms Duffin had a tendency to distance herself from the commercial and human resources aspects of the business and of her involvement in the process, leaving it slightly unclear as to what she was in fact responsible for. She was not clear on specifics, especially dates, and given her administrative background it seemed odd that she did not maintain records of meetings which could, from her perspective, become important. We were not confident that we could place much reliance upon the evidence of either Ms Duffin or Ms McGowan.[143]Mr Pratt’s evidence was reasonably straightforward, but his position was rather compromised by the clear conflict of interest which he had as between the 1 st and 2 nd respondent. Mrs Wood in particular was surprised to discover, relatively late in the process, that Mr Pratt was not simply acting as her long standing accountant but also as a director of the 2 nd respondent. We are unable to find any good reason why Mr Pratt did not make this clear at an earlier stage. While Mr Pratt’s actions are not the subject of any criticism in the substance of the claims made her, we treat his evidence with some reserve given the lack of clarity as to his precise position in the process which led to the transfer of the residents.[144]Mr Hume gave evidence in difficult circumstances. His time in the witness box spanned 3 hearings, and he required to remain on oath over a period of months. In addition, the physical circumstances of the Hearing were adversely affected by significant noise generated by roadworks in the street outside the Tribunal building, and that proved to be distracting for all concerned.[145]That said, however, we did not find Mr Hume to be an impressive witness. From the outset of his evidence, and in particular under crossexamination by Mr Walker for the 1 st respondent, he was combative and unwilling to respond directly to questions put. At one point, in the direct observation of one of the Tribunal members, he addressed a remark very aggressively towards Mrs Wood, which led to a brief confrontation with her solicitor. When challenged by the Employment Judge, he continued to argue his point until advised that if he had an issue with one of the legal representatives in the room, he should direct himself to the Judge who would deal with the matter. Only after this did he settle down and resume his evidence. We considered this conduct to be unnecessarily hostile, and were, in any event, unclear as to its purpose.[146]Mr Hume's consistent approach, in our view, was to try to minimise the terms of any agreements reached with Mrs Wood, and to seek to rely upon the absence of any written contracts, in demonstrating his point that TUPE did not apply to these circumstances. Given that he accepted that his company is responsible for the management of 1 1 Care Homes, most of which had been affected by TUPE transfers, we were bound to conclude that Mr Hume was very familiar with the processes which TUPE required, but was unwilling to concede any point which might give the impression that at any stage he thought that TUPE might apply.[147]There was evidence about the invoice which he issued to Mrs Wood shortly before the first Hearing in this case. We have not made many findings in fact about this because it did not appear to us to be relevant to the issue of TUPE. Indeed, it appears to be a dispute which may require to be played out in another court. However, we found Mr Hume’s actions, and timing, in raising this matter to be quite extraordinary, and his explanation for not pursuing the issue immediately - that he did not want the Tribunal to be affected and nor did he wish to place extra pressure upon Mrs Wood - to be disingenuous. Further, we were entirely unclear as to whether he accepted that there were particular payments to be due on the transfer of the residents, and if so, what they were, given that he made some payments but not the whole amount, for reasons which were never fully explained.[148]Accordingly, we treat the evidence of Mr Hume with considerable reserve, as we considered that he was seeking, in giving that evidence, to advance his case at every turn, rather than addressing himself to each question as it was put. He appeared to be very defensive and unwilling to address the details of the matter. Where there was a conflict between the evidence of Mr Hume and that of Mrs Wood, we preferred that of Mrs Wood as being more credible and reliable.[149]Finally, we heard from both Ms Smith and Ms Newman. We found both witnesses to be patently honest and sincere in their evidence. Ms Smith was introduced to the proceedings as a lead claimant at a very late stage, and was plainly very nervous. However, she emerged as a clear and straightforward witness who was seeking to assist the Tribunal, and we found her evidence credible and reliable. Similarly, Ms Newman was a good and truthful witness, in our judgment. She was rather guarded when it came to questions about her motivation for not wishing to move to Belleville Lodge or Pine Villa, particularly relating to a family matter, but we accepted that she was reluctant, for good reason, to disclose personal issues in a public forum. We did not consider that that in any way diminished her credibility or reliability. io The Relevant Law[150]Whether or not there is a relevant transfer is determined by Regulation 3, the operative provisions for the purposes of these claims being: “3 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 — (ii) activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by ('a subsequent contractor J onl:tf ano ther person cn nT ehS rr and in which the conditions set out in paragraph (3) are satisfied. (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; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use. (6) A relevant transfer— (a) may be effected by a series of two or more transactions; and (b) may take place whether or not any property is transferred to the transferee by the transferor. ”[151]The effect of a transfer is set out in Regulation 4. For the purposes of these claims the operative parts provide: “(1) a relevant transfer shall not operate so as to terminate the 15 contract of employment of 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, 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 regulations 8 and. . ..on the completion of a relevant transfer -(a) 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 25(b) any act or omission before the transfer is completed, in respect of that contract shall be deemed to have been an act or omission of or in relation to the transferee. (3) re jereriCe p gg ph loTeTpef and assigned to the organised grouping of resources or employees that is 30 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.”[152]Regulation 4(7) provides that paragraphs (1) and (2) shall not operate to transfer the employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee. Regulation 4(9) also states that where a relevant transfer involves a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.[153]Regulation 7(1) provides: “7. — (1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is— (a) the transfer itself; or (b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce. ”[154]Thus a person who is dismissed before the transfer in circumstances where the sole or principal reason is the transfer or connected with it in a particular way is still covered by Regulation 4.[155]Mr Walker referred the Tribunal to the case of Spijkers v Gebroeders Benedik Abattoir Cv [1986] 296, and in particular to 2 CMLR paragraphs 21 and 22: [21] Consequently it cannot be said that there is a transfer of an enterprise, business or part of a business on the sole ground that its assets have been sold. On the contrary, in a case like the present, it is necessary to determine whether what has been sold is an economic entity which is still in existence, and this will be apparent from the fact that its operation is actually being continued or has been taken over by the new employer, with the same economic or similar activities. [22] To decide whether these conditions are fulfilled it is necessary to take account of all the factual circumstances of the transaction in question, including the type of undertaking or business in question, the transfer or otherwise of tangible assets such as buildings and stocks, the value of intangible assets at the date of transfer, whether the majority of the staff are taken over by the new employer, the transfer or otherwise of the circle of customers and the degree of similarity between activities before and after the transfer and the duration of any interruption of those activities. It should be made clear, however, that each of these factors is only a part of the overall assessment which is required and therefore they cannot be examined independently of each other. ”[156]We were also referred to Metropolitan Resources Limited v Churchill Dulwich Limited (in liquidation) UKEAT/0286/08, paragraphs 27-30; Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and Others [2016] ICR 607, paragraphs 17 and 18; and McTear Contracts Limited v Bennett and Others UKEATS/0023/19; Mitie Property Services UK Limited v Bennet and Others UKEATS/0030/19, paragraph 41.[157]Section 230 of the Employment Rights Act 1996 (ERA) provides as follows:(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" (except in the phrases “shop worker” and “betting worker") means an individual who has entered into or works under (or, where the 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 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. ”[158]Reference was made to the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 All ER 433 QBD, it is appropriate to have reference to its terms, in which Mr Justice MacKenna set out the following questions:• Did the worker agree to provide his or her own work and skill in return for remuneration?• Did the worker agree expressly or impliedly to be subject to a sufficient degree of control for the relationship to be one of master and servant?• Were the other provisions of the contract consistent with its being a contract of service?[159]This approach had been described by Mummery J in Hall v Lorimer [1992] ICR 739 as having as its object the painting of a picture from the accumulation of detail. The view there expressed was that the overall effect could only be appreciated by standing back from the detailed picture which had been painted, viewing it from a distance and making an informed, considered and qualitive appreciation of the whole. Turning to the more recent treatment of the issue, in Autoclenz v Belcher [2011] ICR 1157, there Lord Clark of Stone-cum-Ebony had stressed (at paragraph 29) that the question in every case must be what was the true agreement between the parties.[160]We were also referred to Cotswold Developments v Williams [2006] IRLR 181, paragraph 61: “(a) was there one contract or a succession of shorter assignments? (b) if one contract, is it the natural inference from the facts that the claimant agreed to undertake some minimum, or at least some reasonable, amount of work for Cotswold in return for being given that work, or pay? 5 (c) if so, was there such control as to make it a contract of employment so as to give rise to rights of unfair dismissal, as well as a right to holiday pay? (d) if there was insufficient control, or any other factor, negating employment, whether the claimant was nonetheless obliged to do some 10 minimum (or reasonable) amount of work personally?”[161]Section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 (TULCRA) provides that where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult the appropriate representatives of the affected employees. The claimant brings his complaint under section 189 of TULCRA, in which section 189(1)(d) entitles him to make such a claim as an individual affected by the redundancy.[162]The Tribunal may, under section 189(2) and (3), make a protective award, ordering the employer to pay remuneration to the claimant for the protected period, which begins with the date on which the first of the dismissals to which the complaint relates takes effect or the date of the award, whichever is the earlier, and is of such length that the Tribunal determines to be just and equitable in all the circumstances, having regard to the seriousness of the employer’s default in complying with the requirements of section 188, but shall not exceed 90 days. Discussion and Decision[163]The issues in this case are, in our view: 1. Was there a relevant transfer within the meaning of Regulation 3(1 )(a) of TUPE of TUPE, from the 1 st to the 2 nd respondent? 2. Was there a relevant transfer as a result of a service provision change from the 1 st respondent to the 2 nd respondent in terms of Regulation 3(1)(b) of TUPE? 3. If so, when the did the relevant transfer take place? 4. Was Laura Smith an employee of the 1 st respondent as at the date of the alleged transfer? 5. Should Laura Smith or Leah Newman have transferred employment to the 2 nd respondent at the date of the alleged transfer? 6. Was there a failure to consult with staff in breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992?[164]We have left aside any questions of remedy or of protective awards, on the basis that it was agreed by the parties and the Tribunal during the course of the Hearing that there would require to be a separate remedy Hearing to determine such issues, including whether or not any of the staff refused to transfer, if there was the opportunity to do so. Further, we have not sought to make findings in fact relating to the claimants other than the lead claimants, on the basis that we do not wish to make assumptions about their circumstances or actions which do not arise from clear evidence.[165]We seek to address the issues in turn, then, as follows: 1. Was there a relevant transfer within the meaning of Regulation 3(1 )(a) of TUPE of TUPE, from the 1 st to the 2 nd respondent? 2. Was there a relevant transfer as a result of a service provision change from the 1 st respondent to the 2 nd respondent in terms of Regulation 3(1 )(b) of TUPE? 3. If so, when the did the relevant transfer take place? 1 66. We take these issues together on the basis that they are, to some extent, related.[167]It is appropriate to start by considering the effect of the agreed Heads of Terms, which were the subject of different revisions but which finally found their expression in the document prepared on 10 March 2021 (126).[168]It appears that the 1st respondent takes the view that while these were not converted into a finalised contract between them and the 2nd respondent, the Heads of Terms should be taken as an “analogous transaction”, in relation to which the parties were of the view that TUPE applied.[169]However, in our judgment, we require to treat the Heads of Terms with some caution. The premise upon which the Heads of Terms were agreed was that the 2nd respondent was to build a “new purpose built Care Home facility in Haddington”; and that on the opening of the facility, the 2nd respondent would acquire the business of the 1st respondent, and accordingly take over all the employees under TUPE, take over the care of all residents and release the property at Adamwood for sale or disposal.[170]It is clear that at that stage, in March 2021, the parties believed that a TUPE transfer would take place, when the new Haddington care home opened and the residents and staff would transfer there. However, as is clear from the evidence, the Haddington care home had not opened by the time of the alleged transfer; none of the residents nor staff were in fact transferred there, nor did the parties think it would be appropriate for them to do so; and therefore the Heads of Terms were not implemented as drafted.[171]The agreement in the Heads of Terms was that each private resident would attract a figure of £17,500 and each social work funded resident a figure of £10,000. It appears that there was some understanding on the part of the parties that those figures would be translated into the transfer of residents to Pine Villa and Belleville Lodge.[172]In our judgment, it was clear from the evidence that the Heads of Terms raised an expectation in the mind of Mrs Wood that when residents were to transfer to the responsibility of the 2nd respondent, they would do so on the basis that TUPE would apply and that the figures to be paid in respect of each resident would be paid according to the Heads of Terms. This, in our view, is critical to her understanding of the events which io followed. It was also our conclusion that Mr Hume, with considerable experience of TUPE transfers, was aware that the situation had changed and was careful not to agree Heads of Terms in respect of the moves in June 2021.[173]The fact that the Heads of Terms dealt with an analogous transaction does not mean that the agreement enshrined therein can be taken to apply to the transfer of residents to Pine Villa and Belleville Lodge. It plainly and expressly applied to the transfer of residents, and staff, to a new Haddington care home, but did not apply to the circumstances in which the parties reached a different agreement in June 2021 .[174]It should also be said that defining precisely what the agreement was between the parties in June 2021 is very difficult, partly because, in our judgment, Mrs Wood assumed that the previous agreement held good, and Mr Hume took the opposite view, and partly because, for these reasons, the parties never committed their agreement to writing so as to clarify their mutual understanding as to the application of TUPE.[175]However, a written agreement is not necessary between the parties for TUPE to apply to the transaction before us. It is a matter of applying the statutory tests to determine whether or not there was the transfer of an undertaking, in relation to the privately funded residents, or a service provision change in relation to the socially funded residents.[176]Mr Haywood, for the claimants, made a submission that there was lack of clarity in the evidence about what was agreed, by whom and ultimately when, and that that was indicative of the confusion which reigned in the final days of Adamwood. 1 77. In light of the Spijkers judgment, it is necessary to consider whether what was purchased by the 2nd respondent was a going concern at the point of the alleged transfer. While there is some doubt as to the precise arrangement reached between the 1 st and 2 nd respondent, particularly as to the price which appears to be the subject of an ongoing dispute between them, it is clear, in our view, that the 2nd respondent took over responsibility for the 8 residents who transferred to their homes, who had previously been cared for by the 1 st respondent, and paid a price calculated according to the details of those residents to the 1 st respondent.[178]It is clear that the price paid by the 2 nd respondent is lower than the sum which the 1st respondent believed to have been agreed, and that this remains in dispute between the parties, but for the purposes of this Tribunal, it is not necessary to resolve that dispute. At least part of the price agreed has been paid by the 2 nd respondent; if they did not agree it, then there was no reason for them to pay anything to the 1 st respondent. The amount is not a matter for us to determine, but there was plainly an agreement between the respondents that the transfer of the residents to the 2nd respondent’s premises came with a cost calculated according to the number and funding basis of each of those residents.[179]Was there a going concern at the point of transfer? In our judgment, there was. The 1 st respondent was carrying out the business of caring for elderly residents at Adamwood. Adamwood closed when the last resident was moved out. That the 1st respondent considered that they could no longer afford to or manage to look after the residents to the standard required does not alter the fact that as at June 2021 they were still caring for them, and that came to an end when, by agreement, they transferred 8 of those residents to the premises of the 2 nd respondent.[180]The two who did not transfer were moved elsewhere, according to the wishes of their families, as we understood it.[181]Mr Walker submitted that the 2 nd respondent wanted to take all of the employees and bank staff into their employment to look after the transferring residents. Our interpretation of the evidence was that they did not want to take those staff under TUPE, but wanted to explore with the staff whether or not they were willing to move to their employment to benefit from their experience and skills. As Mr Haywood said, the evidence demonstrated that the factual consequences of a TUPE transfer io did not occur in this case as the staff were not transferred automatically to the employment of the 2 nd respondent, but required to apply, undergo interview and statutory checks and be offered a position if acceptable to the 2nd respondent.[182]Mr Walker submitted that tangible assets did transfer, albeit not required. There was a list of items which were said to have been transferred (134). Mr Hume was dismissive of this list, and indeed of the state of repair of some of these items. We did not consider this to be a significant aspect of the matter, but took the view that these assets did transfer to the 2nd respondent, even if they had no use for them due to their condition. That is essentially a matter for them.[183]Mr Walker submitted that the contracts with each of the residents, whether private or social, transferred to the 2 nd respondent. As a matter of fact, this is correct and we accepted this to be the case.[184]He also argued that there was a significant degree of similarity between the activities pre- and post-transfer, that is, that the residents were provided with nursing care in both places, and that there was no suspension or disruption of the activities. Certainly, we accept this to be the case. The residents moved to the new care homes and were immediately cared for in their new premises. The employees who did move to the employment of the 2 nd respondent did so in order to look after the residents who transferred, though as we understood the evidence, they were also deputed to carry out more general caring duties with regard to other residents in the homes.[185]Following the transfer of the residents, Adamwood closed and the 1 st respondent ceased its activities. The 1 st respondent no longer took responsibility for caring for any residents, and Adamwood, as we understand it, was placed on the market for sale. Their business ceased as at 29 June 2021.[186]The 2 nd respondent denied in their ET3 that they had purchased the business carried on at Adamwood as a going concern. It is true that they did not take over the business at Adamwood, but in our judgment, they did take over 8 of the 10 residents who had been cared for there. That they did not buy or lease the premises does not, in our judgment, provide a definitive answer to whether there was a TUPE transfer in this case.[187]We also discount the email of 18 October 2021 (199) from Mrs Wood’s former solicitor to her expressing a view about whether or not there was a transfer of an undertaking here. That was a view expressed by a solicitor at a particular point in time, but we are unable to determine what weight should be accorded to that opinion, partly because we do not know what information was provided to him (nor what question he was asked) and partly because he did not give evidence. It was clear, in our view, that Mrs Wood understood that TUPE would apply at the time of the alleged transfer.[188]There was, in addition, an email which was drafted by Lucy Duffin, of the 2 nd respondent, to be sent to Alison Vikis at East Lothian Council, one of the funding Councils, on 11 June 2021 (140). That email was not sent to Ms Vikis by Mrs Wood, but it is indicative of the parties’ understanding at that stage.[189]In that email, Ms Duffin proposed that Mrs Wood should say: “.../ will have support from the Adamwood staff and support from Mansfield staff to ensure the physical transition is smooth and comfortable. The staff from Adamwood will move over to Mansfield Care therefor (sic) providing continuity of care and support from friendly, known staff to the ladies of Adamwood. . . Financially and contractually, the residents will remain on the same terms or better. This has been agreed with Andrew Hume. The same applies to the staff. . . ”[190]In our judgment, this plainly demonstrates an intention, as at 11 June 2021 , for the 2 nd respondent to take not only residents but the staff from Adamwood. While there is no reference to TUPE, the fact that it was said that the residents would remain on the same terms or better, and that the same applied to the staff, indicates that it was the 2 nd respondent’s understanding and therefore intention that they would take on the staff from Adamwood on the same terms and conditions. Given Mr Hume’s very considerable experience of TUPE transfers across his homes, we conclude from this that he intended and understood that TUPE would apply to the staff moving across to Mansfield Care from Adamwood.[191]However, that is not the end of the matter. Mr Bathgate, for the 2 nd respondent, submitted strongly that there is no economic entity retaining its identity following the move of the residents to the new homes. He argued this, as we read it, on two bases: firstly, that the residents were moved to 2 homes, rather than one, and therefore if they amounted to an economic entity that would be dissipated in that distribution; and secondly, that the staff were not assigned to the particular residents after they moved across and accordingly it could not be said that they were retained in a coherent form.[192]The difficulty with this argument is that the 2nd respondent did not set up any clear arrangement as to where the Adamwood staff would be deputed, since so few of them actually moved to their employment. While it is clear that staff were not assigned to particular residents in Adamwood (or that if they were, we heard no evidence to that effect), they were assigned to the care of those residents who were then transferred to the care of the 2 nd respondent.[193]In our judgment, there was an economic entity - namely, the responsibility for caring for the group of 8 residents who moved to the care of the 2 nd respondent - and that retained its identity notwithstanding the distribution of the residents to two different homes. That was simply a matter of practicality: they were subject to the care of the same provider, and thereby the same company responsible for the 2 homes.[194]We considered that it was clear that if the staff transferred over to the employment of the 2 nd respondent, they would not have been restricted to the care only of the residents who were transferring at the same time. That would be a very limited use of the staff resources and time, and once they had move to the new premises, it was inevitable that they would be deployed to look after other residents.[195]That does not, of itself, in our judgment, preclude a finding that there was a TUPE transfer or a service provision change in relation to the undertaking.[196]We have therefore come to the conclusion that, considered as a whole, and notwithstanding the absence of any clear agreement between the 1 st and 2 nd respondents as to the arrangements to be made, there was a transfer of an undertaking in relation to the privately funded residents who transferred in the days leading up to and including 29 June 2021 to the care of the 2nd respondent, and that the staff working in Adamwood at that date should have transferred under TUPE to the employment of the 2 nd respondent.[197]We have also concluded that in relation to the socially funded residents, there was a service provision change and that the staff should therefore have transferred to the employment of the 2 nd respondent.[198]We accept that this is not precisely the claim which the claimants have made, in that they only directed their claims against the 1 st respondent However, the 2 nd respondent having been introduced as a party to the proceedings, it was necessary for us to determine whether or not there was a transfer of an undertaking or a service provision change, which plainly has major implications for the 2 nd respondent. 4. Was Laura Smith an employee of the 1 st respondent as at the date of the alleged transfer? 5. Should Laura Smith or Leah Newman have transferred employment to the 2 nd respondent at the date of the alleged transfer?[199]We have taken these two issues together, but address them in turn.[200]We recognise that the Hearing was set down to address the issues as they related to the lead claimants, but that the decisions made in relation to those lead claimants would be binding upon the other claimants. That has given rise to some awkwardness, particularly in relation to the question of remedy and also as to whether or not the claimants rejected the opportunity to transfer, and it is necessary for the Tribunal to take care to defer any such individual questions to a later Hearing as required.[201]So far as Laura Smith is concerned, we have taken into careful account the evidence which she gave relating to her own circumstances, and her understanding of the way in which work was allocated to her and to the others.[202]Firstly, it is necessary to understand what was meant by the phrase “bank staff’, which was frequently used to describe Ms Smith and her colleagues, primarily, as we saw it, to demonstrate that there was a casual relationship between Ms Smith and the 1 st respondent.[203]Reference was made to the NHS nurse bank, and indeed we heard evidence that at least one of the claimants has now moved to that bank. The arrangement there, from the evidence and without seeing any contractual documentation defining the relationships on the nurse bank, is that a body of staff are placed on a register, known as the bank, and when staff are needed in a particular ward or department, the members of the bank may be called upon to complete a shift there on a day when they are required. There is, as we understand it, no obligation upon the bank administrator to offer any shift on any day to any particular member of the bank, nor is there any obligation on the part of the bank staff to accept a shift when it is offered. In other words, there is no mutuality of obligation between bank and bank staff with regard to the offer or acceptance of work.[204]In our view, the use of the term “bank staff’ is unclear in the context of io this case, and in particular in the circumstances of Ms Smith, and unhelpful in developing an understanding of the nature of the relationship she had with the 1 st respondent.[205]We considered that the following evidence was significant in relation to the circumstances of Ms Smith:• Ms Smith commenced employment with the 1st respondent shortly after qualification as a Registered General Nurse (RGN) in 1997, and was employed by them for approximately 20 years;• Her primary employment was as a staff nurse in the Western General Hospital in Edinburgh, working in the Breast Unit;• She took on employment with the 1 st respondent in order to supplement her salary, after a colleague informed her that Mrs Wood was looking for staff nurses at Adamwood;• It was necessary for the 1 st respondent to deploy a qualified RGN to each shift;• Ms Smith would provide her availability to Mrs Wood in advance of each week, as would the other RGNs, and Mrs Wood would then complete the off duty rota to ensure that all shifts were completed;• Ms Smith would be deployed to night shifts, according to her availability;• Occasionally, Ms Smith would provide additional cover to ensure that an RGN was on duty at all times, when colleagues were unavailable;• Similarly, if Ms Smith was not available to carry out shifts, she would not make herself available in advance; or if she became unwell, she would not be in a position to cover the shift but would endeavour to contact a colleague to do so in her place;• Ms Smith was not provided with a written statement of terms and conditions of employment by the 1 st respondent;• For the most part, she worked 2 night shifts per week on a Tuesday and a Friday, and was paid accordingly. On occasions, she worked additional shifts to help out, and was paid for those shifts. Since her hours varied, her holiday pay would be calculated each 3 months in arrears and paid thereafter;• Ms Smith did not want to work for the NHS nurse bank as she wanted stability and regularity in her working arrangements; for the same reason she did not wish to be contracted to a nursing agency;• Ms Smith’s working relationship with the I st respondent remained very stable and regular throughout the approximately 20 years she worked at Adamwood. She understood, as did the other RGNs, that the off duty rota required her and her colleagues to provide regular and certain service to the 1 st respondent in order to ensure that all shifts were covered each week.• Ms Smith’s payslips, or the sample disclosed to the Tribunal (S12ff), confirm that she was paid subject to the deduction of PAYE tax and National Insurance (although no actual deductions were made for National Insurance on the payslips produced), and also subject to the deduction of pension payments. Holiday pay was remitted to her each 3 months, on the basis of the number of hours actually worked over that period.[206]We reviewed the authorities in considering whether or not Ms Smith was an employee or an independent contractor, and sought to address the questions in the Ready Mixed Concrete case:• Did the worker agree to provide his or her own work and skill in return for remuneration? It is clear that Ms Smith did provide her own work and skill in return for remuneration.• Did the worker agree expressly or impliedly to be subject to a sufficient degree of control for the relationship to be one of master and servant? In our judgment, there was a sufficient degree of control on the part of the 1 st respondent for Ms Smith to be in a relationship of master and servant. Had she not had her primary employment with the NHS, we do not believe that this would have been an issue at all; the nature of the relationship was plainly one in which she was providing regular and consistent service over a period of more than 20 years to the same employer in the same location to the same group of residents (albeit, due to their nature, changing over time).• Were the other provisions of the contract consistent with its being a contract of service? In our judgment, the absence of a written statement of terms and conditions does not preclude a clear understanding of the nature of the relationship. She was paid and taxed as an employee; her service was regular and consistent; she was not, in our view, free to refuse to carry out shifts, other than the ways which are expected in an employment relationship, that is, when she was unwell or on holiday; and the 1st respondent was wholly dependent upon her to carry out her shifts. She considered herself under a strong obligation to provide her regular service, and indeed to provide additional service in order to ensure that the shifts were covered.[207]In our analysis, this is not a situation where bank staff were called upon in order to supplement a cohort of regular employees; Ms Smith and her RGN colleagues were the cohort of regular employees. To call them bank staff is a misnomer, and we consider that it would be misleading to assume that the nature of the relationship was one where there was a degree of freedom available to Ms Smith as to whether or not she worked. We accepted Ms Smith’s evidence that she would not have accepted a bank position. She required the work, and the pay which came with it, to be regular, initially to help her pay for renovations on her flat and later to provide for her family.[208]The Tribunal then considered, for completeness, whether the irreducible minimum of mutuality of obligation existed between Ms Smith and the 1 st respondent. We have already found that Ms Smith considered herself to be under a strong obligation to provide regular service to the 1 st respondent; we must determine whether or not she was under such an obligation.[209]Taking into consideration the Cotswold Developments decision, we have found that:• There was one contract between Ms Smith and the 1 st respondent, and not a series of assignments;• Ms Smith did, on the facts, undertake a minimum or reasonable amount of work for the 1 st respondent in return for being given that work or pay; she worked 2 night shifts per week, regularly over an extensive period of time, and expected to do so. She relied upon that work because, as she conceded frankly, she relied upon the money it brought her. She plainly felt a sense of loyalty and obligation personally to Mrs Wood, and we consider that that was built up due to the mutual obligation and dependence between them.• There was such control exercised by the 1st respondent as to make it a contract of employment such as to give rise to a claim of unfair dismissal. The 1 st respondent’s entire business relied upon Ms Smith and her other “bank staff’ colleagues to cover the entire off duty rota. Without them, the 1 st respondent’s business would have collapsed. Had Ms Smith left, she would have required to provide a period of notice to allow Mrs Wood to find a replacement, which she would have required to do. Mrs Wood plainly managed Adamwood, and deployed Ms Smith and others to carry out the shifts necessary to take care of the residents. In our view, there is no doubt that Mrs Wood was in charge of the io work there, and supervised that work carried out by Ms Smith and others.[210]It is our conclusion, therefore, that Ms Smith was an employee of the 1 st respondent, and in particular that she was an employee at the point when the transfer took place on 29 June 2021 .[211]There is no dispute that Leah Newman was an employee of the 1 st respondent at 29 June 2021 .[212]It is accordingly our judgment that both Ms Smith and Ms Newman were part of the undertaking at the date of the transfer, and therefore that their employment should have transferred to the 2 nd respondent at that date. 6. Was there a failure to consult with staff in breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992?[213]Oh the basis that we have found that MsSmith was an employee of the 1 st respondent, and that that finding is binding in relation to the other claimants in her group as lead claimant, it is our conclusion that the 1 st respondent had a group of more than 20 employees. ? ... "■'- *[214]In our judgment, there is no basis for any finding that consultation took place under sectipij 188 of the 1992 Act by the 1 st (or 2 nd ) respondent. There was ho recognised Trade Union at Adamwood, and no option on the part of the staff to elect a recognised representative. The evidence demonstrates that the information - that Adamwood was to close and the residents be transferred elsewhere - was disseminated in a desultory and informal manner. Nothing was provided in writing to the staff and there was uncertainty and, frankly, rumour rife within the workplace in the days leading up to 29 June 2021 .[215]While it may well be that the reason for this was that Mrs Wood considered that there was no need to consult since she understood that the staff were all to be taken on by the 2 nd respondent under TUPE, the question for this Tribunal is whether or not there was any consultation with the staff as to the proposal of redundancy. In this case, there was no such consultation. The staff were simply left to work out what was happening and what they could do to secure their futures.[216]We find, therefore, that there was a failure to carry out consultation in respect of proposed redundancies, and that protective awards should be made.[217]As to where the liability for such awards rests, we have carefully considered this and have concluded that this should be a matter for further submissions based on the findings which we have made in relation to TUPE at the remedy hearing to be listed.[218]However, since it will be necessary to consider the question of remedy separately in relation to the claimants, based on all of the conclusions reached in this Judgment, we defer our determination of this issue until we have heard further submissions on this point from each of the parties.[1]In this case, a Judgment was issued by the Tribunal dated 17 April 2023, making a finding that there had been a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), in terms of both Regulations 3(1)(a) and 3(1)(b).[2]In a sealed Judgment dated 30 July 2024, the Employment Appeal Tribunal (the Honourable Mrs Justice Eady DBE, President) allowed the second respondent’s appeal against the finding that there was a TUPE transfer under Regulation 3(1)(b).[3]In addition, the Employment Appeal Tribunal allowed the appeal against the finding that there may have been a breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.[4]The Employment Appeal Tribunal remitted the case back to the Employment Tribunal which had heard the original Hearing, and set out its remit as follows, in paragraph 96 of its Judgment: “As for the extent of the remission, from the submission of the first respondent on disposal, I understand that the case will be put solely on the basis of there having been a business transfer under regulation 3(1)(a) TUPE; that will therefore set the parameters for the ET’s reconsideration. This matter having thus been remitted, further case management must be for the ET itself. I would expect that it will find it helpful to receive further submissions from the parties, with particular focus on the case-law and guidance provided in this judgment, but whether that is limited to written representations or allows for an oral hearing must be a matter for the ET.”[5]This Tribunal determined, following receipt of the views of the parties, that it was appropriate and in the interests of justice to convene a Hearing at which the parties would be given the opportunity to make submissions.[6]That Hearing was listed to take place by Cloud Video Platform on 9 and 10 December 2024, though as it turned out only 1 day was required, and the Hearing concluded on 9 December. The claimants were represented by Mr Kissen; Mr Walker appeared for the first respondent, as before; and Mr Milne, advocate, appeared for the second respondent.[7]Parties made submissions, which we heard carefully, and referred to authorities. The Tribunal then adjourned, and reconvened on 31 January 2025 in order to complete our deliberations in this case.[8]We set out below a relatively brief summary of the submissions made; reference to the relevant law; and our decision based on these submissions and taking into account the remit from the EAT and the terms of their Judgment. Submissions – First Respondent[9]For the first respondent, Mr Walker presented a written submission, to which he spoke. He sought to provide a summary of the law in the early part of his submission, and referred to paragraphs 35 to 44 giving guidance as to the law relative to the question before the Tribunal.[10]He sought to break down the terms of Regulation 3(1)(a), to identify the following questions which must be answered in the affirmative for there to be a business transfer under that provision: 1. Was there a transfer to another person? 2. Was there an economic entity? 3. Was there a transfer of an economic entity which retained its identity after the transfer? 4. Was that entity situated immediately before the transfer in the United Kingdom?[11]He said that the key issues are identifying the economic entity and whether that entity transferred retaining its identity.[12]Mr Walker then summarised the domestic and European law relating to identifying the economic entity and the transfer of an economic entity.[13]He then submitted that the task before the Tribunal now is to determine whether the facts in this case, already determined in the Tribunal’s original Judgment, fall within the definition of Regulation 3(1)(a) in light of the guidance provided by the EAT.[14]His submission moved then to the substance of his arguments in this case.[15]He submitted that the first respondent was an undertaking situated immediately before the transfer in the United Kingdom, namely Adamwood Nursing Home at 47C Ravensheugh Road, Musselburgh, East Lothian. The first respondent operated an undertaking which was, immediately before the transfer, situated in the United Kingdom.[16]He then submitted that there was a transfer of part of the first respondent’s undertaking or business to the second respondent, being a transfer to another person as required by Regulation 3(1)(a).[17]Mr Walker then moved to his submission that there was an economic entity, being an organised grouping of resources which had the objective of pursuing an economic activity, whether or not that activity was central or ancillary. He referred to Cheesman & Others v R Brewer Contracts Ltd [2001] IRLR 144, the leading case in this area, and in particular quoted that it held that “the identity of an entity emerges from factors such as its workforce, management staff, the way in which the work is organised, its operating methods and, whether appropriate, the operational resources available to it.”[18]Mr Walker then argued that in this case, there was an organised grouping of resources, enabling or facilitating the exercise of an economic activity which pursued a specific objective, namely the provision of specialist nursing and care services.[19]The workforce was an organised grouping of employees. The first respondent operated as a limited company, one of whose 2 shareholders was Mairi Wood, who was the manager organising the work of nursing and caring for residents by way of shifts. She arranged the shifts. A key and essential part of the work, he submitted, was carried out in the nursing home by skilled qualified registered nurses. Each shift required a registered nurse, and Mrs Wood worked some shifts in this capacity. The nurse was responsible on shift for the nursing care.[20]He made reference to certain findings of the original Judgment of the Employment Tribunal, such as that there was a going concern and certain assets available to the first respondent in conducting that going concern.[21]Mr Walker went on to submit that there was a transfer of an economic entity which retained its identity. He argued that the first respondent sold its undertaking, consisting of the provision of nursing, care and ancillary services, to the second respondent. It was agreed that there would be a sum paid for the sale of this undertaking, albeit that that sum was disputed. This was not a matter in respect of which the Tribunal had jurisdiction (that is, the determination of the precise amount to be paid).[22]The lack of a transfer is one factor in this case, which was not decisive in determining whether there was a relevant transfer. He reiterated that the Tribunal found that the transfer to another legal entity was to the second respondent, and that it did not matter that the transfer was to two of the second respondent’s nursing homes.[23]As to whether or not the economic entity retained its identity, Mr Walker referred to Spijkers v Gebroeders Benedik Abattoir CV 24/85 [1986] 2 CMLR 296, which emphasised that the assessment must be holistic in nature and that it is necessary to take account of all the factual circumstances of the transaction in question.[24]Mr Walker referred to the Tribunal’s original findings at paragraphs 42 and 172 of the original Judgment, which make clear that it was the intention of the second respondent to continue the operation of providing nursing care and care services to the residents of the first respondent using the employees of the first respondent to provide the continuity of service. There was an email by the second respondent’s Lucy Duffin to Mairi Wood suggesting wording to be used to East Lothian Council, which was ultimately not used; however, the intention behind the draft email is of importance, he submitted.[25]Referring to Cheesman, Mr Walker argued the provision of nursing and care services did continue in relation to 8 out of the 10 residents, having transferred to the other legal entity, namely the second respondent. The fact that they were moved to 2 separate homes did not mean that there was no TUPE[26]He went on to set out the matters falling for consideration, based on the facts found by the Tribunal.[27]Firstly, the type of undertaking or business in question, which was the provision of specialist nursing services provided by qualified nurses and care services for elderly residents.[28]Secondly, the transfer or otherwise of tangible assets, in relation to which he pointed to paragraph 182 of the Tribunal’s Judgment that a list of tangible assets did transfer.[29]Thirdly, the value of intangible assets as at the date of the transfer. While it was not valued, he maintained that the purchase price paid by the second respondent to the first respondent reflected an element of goodwill (though again the amount is disputed).[30]Fourthly, he submitted that there was no requirement for there to be a transfer of the physical building which housed the residents when cared for by the first respondent, as a transfer may take place whether there is a transfer of property from one to the other. It had been anticipated that an earlier deal had been reached between the respondents, which did not proceed, but which included draft Heads of Terms stating that TUPE would apply to transfer the first respondent’s employees to the 2nd respondent. It was not part of the second respondent’s case that the home used by the first respondent required to form part of any transfer.[31]Fifthly, the transfer or otherwise of the customers. In this case, 8 out of the 10 residents did transfer.[32]Sixthly, the transfer of the residents’ contracts. The Tribunal found at paragraph 183 of the original Judgment that the contracts with each of the residents transferred.[33]Seventhly, the employees. He argued that the fact that only some of the employees transferred to the second respondent was not a decisive factor. Lack of staff transferring cannot be used as a means to avoid the application of TUPE. The second respondent’s position is, in any event, that those employees who did not transfer validly objected to the TUPE transfer, a matter to be determined later, if relevant.[34]Mr Walker referred to Lightways (Contractors) Ltd v Associated Holdings Ltd [2000] IRLR 247 as authority for the proposition that the Tribunal is entitled to have regard, as a relevant circumstance, to the reason why the alleged transferee had not taken on certain employees of the alleged transferor; and argued that in this case, the attitudes adopted by the second respondent in anticipation of the transfer amounted to an attempt to avoid the application of TUPE. In particular, he invited the Tribunal to find that the transaction between the respondents was deliberately structured so as to avoid TUPE applying, by Andrew Hume. He referred to the Tribunal’s findings in fact on this point.[35]The second respondent made little effort to take on the first respondent’s staff, and no evidence was provided to the effect that the second respondent proactively attempted to bring this about.[36]Notwithstanding this, Mr Walker submitted that some of the first respondent’s staff did transfer to the second respondent (paragraph 65 of the original Judgment). 6 of those staff transferred, including the lead claimant Laura Smith (paragraph 79).[37]Finally, on this matter, Mr Walker argued that the services provided before and after the transfer were very similar. The second respondent referred, in their draft email sent to Ms Wood, to the provision of continuity of care from friendly, known staff to the ladies of Adamwood. There was no interruption in the provision of the activities. He asserted that the transfer was planned deliberately to avoid any such interruption in activities.[38]He went on to submit that the legal principles of Ferreira de Silva e Brito and ors C-160/14 [2016] 1 CMLR 26 applied to the facts of this case. A link was preserved between the assets and staff that transferred on the one hand and on the other, the pursuit of activities previously carried on by the first respondent.[39]Mr Walker concluded by submitting that there was a relevant transfer of the first respondent’s undertaking to the second respondent under Regulation 3(1)(a) of TUPE, and that the claimants had the right to transfer to the second respondent under TUPE. The relevant transfer took place over a period of around one week and was completed on 29 June 2021 when the last of the residents was moved from the first respondent’s care to the second respondents.[40]He submitted, therefore that all claims against the first respondent should be dismissed. Submissions – second respondent[41]For the second respondent, Mr Milne advised that his submission would address 3 main points:(1) The jurisdiction of the Employment Tribunal following the remit by the Employment Appeal Tribunal;(2) The entity that transferred did not amount to an economic entity under Regulation 3(1)(a) of TUPE; and(3) In any event, that purported economic entity did not retain its identity post-transfer.[42]With regard to the first of these points, Mr Milne summarised the position of the Tribunal. The Tribunal has exhausted its jurisdiction when it issues its final decision, but the Employment Appeal Tribunal has the power to remit the case for reconsideration or for more limited purposes. In this case, the purpose of the remit revives the jurisdiction of the Tribunal to consider the matter remitted to it. Here the parameters are clearly set by paragraph 96 of the Employment Appeal Tribunal’s Judgment.[43]Next, he addressed the Tribunal on his argument that what is important is whether a whole or part of a business is an economic entity. Just because there is a transfer of part of an undertaking does not mean that there has been a TUPE transfer.[44]He referred to Cheesman at paragraphs 10 and 11. He observed that contracts cannot amount to an undertaking; there needs to be an organised grouping which is autonomous and stable.[45]Mr Milne referred the Tribunal to Fairhurst Ward Abbotts Ltd v Botes Building Ltd and others [2004] EWCA Civ 83, a Court of Appeal Judgment. He pointed us in particular to paragraphs 32 to 34, and to the final sentence of paragraph 32. It is appropriate, given the centrality of this to the second respondent’s submission, to quote here from those paragraphs (Mummery LJ): “32. This case is concerned with the effect of partitioning the borough into two separate areas. As already explained, the Acquired Rights Directive and the 1981 Regulations are capable of applying to the transfer of ‘part of an undertaking’ as well as to the transfer of an entire undertaking. A part of an undertaking is simply something less than the whole of an undertaking. Neither the legislation nor the case law expressly requires that the particular part transferred should itself, before the date of the transfer, exist as a discrete and identifiable stable economic entity. Nor do I think that such a requirement is implicit in the need to identify a pre-existing stable economic entity. In my judgment, it is sufficient if a part of the larger stable economic entity becomes identified for the first time as a separate economic entity on the occasion of the transfer separating a part from the whole. (Tribunal’s emphasis) 33. I agree that, if it is possible to identify part of an undertaking as a discrete economic entity before the transfer takes place, the applicant will find it easier to satisfy both the ‘transfer’ test, that the part transferred retains its identity in the hands of the transferee, and the requirement that the applicant was employed, immediately before the transfer, in the part transferred. But I do not agree that, in the absence of a part which is identifiable as a discrete economic entity before the transfer takes place, there can be no transfer of a part or that it will be impossible for the applicant to establish that there was a transfer of the part of the undertaking in which he was employed. It all depends on the evidence available in the particular case. In contending for transfer of a part it may be more difficult to make the required ‘before’ and ‘after’ comparison where the part becomes a discrete economic entity for the first time on the making of the transfer, but it is not necessarily an impossibility. 34. I would add that the attainment of the aim of the Acquired Rights Directive and of the 1981 Regulations, in preserving the continuity of employment relationships within an undertaking, does not require a distinction to be drawn between(a) the case where the part of the entity transferred was identifiable as a discrete part before the transfer and(b) the case where the part of the entity transferred became identifiable as a separate entity, in this case geographically, on the actual making of the transfer. On the contrary, if Mr Swift is correct, the Regulations and the Directive would not apply to the case where an existing stable economic entity, in which there are employment relationships, are partitioned into separate identifiable parts for the first time on the making of the transfer, even in cases in which it is evidentially possible to trace the organisation of the work carried on after partition back into a part of the larger pre-partition stable economic entity. That result is not, in my view, consistent with the aim of the Regulations and the Directive nor is it dictated by the text and scheme of the domestic and Community legislation.”[46]Mr Milne identified the larger economic entity as Adamwood Nursing Home, and when you separate the part from the whole there needs to be a separate economic entity existing at the date of the transfer; when it is moved to the second respondent, it needs to be a separate economic entity. He gave the example of a company with different divisions, one of which can be hived off separately, and does not need the rest of the company.[47]He used an analogy. If you cut off part of a pie, it is still a pie. If you cut out part of a book, it will no longer have the purpose of telling the story of the book. This, he said, was the nub of his submission in simple terms.[48]He moved then to consider the case of Sanchez Hidalgo and others v Aser and one associated case [1999] IRLR 136 ECJ at paragraphs 25 to 27. It is appropriate to set out those paragraphs in full: “25. In order for Directive 77/187 to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract: Ledernes Hovedorganisation v Dansk Arbejdsgiverforening (Rygaard’s Case) (Case C-48/94) [1996] ICR 333, 346, para 20. The term ‘entity’ refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective: Suzen [1997] ICR 662, 670, para 13.26. Whilst such an entity must be sufficiently structured and autonomous, it will not necessarily have significant assets, material or immaterial. Indeed, in certain sectors, such as cleaning and surveillance, these assts are often reduced to their most basic and the activity is essentially based on manpower. Thus, an organised grouping of wage earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity.27. The presence of a sufficiently structured and autonomous entity within the undertaking awarded the contract is, in principle, not affected by the circumstance, which occurs quite frequently, that the undertaking is subject to observance of precise obligations imposed on it by the contract-awarding body. Although the influence which the contractawarding body has on the service provided by the undertaking concerned may be extensive, the service-providing undertaking nevertheless normally retains a certain degree of freedom, albeit reduced, in organising and performing the service in question, without its task being capable of being interpreted as simply one of making personnel available to the contract-awarding body.”[49]Mr Milne argued that there needs to be a degree of freedom in organising and performing the service in question. Without that, the task is simply one of making personnel available, which is not a TUPE transfer.[50]He went on to refer to further paragraphs in the Judgment in Sanchez Hidalgo. In paragraph 29, it is necessary to consider all factors together, and not as single factors in isolation, giving them the weight appropriate to them in reaching the conclusion.[51]In paragraph 30, Mr Milne maintained that if Adamwood only transfers the contracts, they are not of themselves economic activities – that simply amounts to the activity.[52]Paragraph 31 sets out the factors to be taken into account. Key in his submission was that where an economic entity can function without significant tangible or intangible assets, the maintenance of identity cannot depend on the transfer of such assets.[53]In paragraph 32, Mr Milne accepted that if a major part of an economic entity is transferred, it may amount to an economic entity. However, that paragraph requires to be read against paragraph 26: it still needs to be sufficiently structured and autonomous.[54]He used the analogy of a security company which could transfer a group of “bouncers” without transferring the HR or accounts departments. The major part which does transfer must be autonomous when separated from the whole.[55]Mr Milne then took the Tribunal to the Judgment of the Court of Justice of the European Union in Scattolon v Ministero dell’Istruzione, dell’Universita e della Ricerca Case C-108/10[2012] ICR 740. At paragraph 38, the Court set out the first question, whereby the national court asked, in essence, whether the taking over by a public authority of a member state, of staff employed by another public authority entrusted with the task of supplying schools with auxiliary services, constituted “the transfer of an undertaking”.[56]In paragraph 42, the Court said: “The term ‘undertaking’ within the meaning of article 1(1) of Directive 77/187 covers any economic entity organised on a stable basis, whatever its legal status and method of financing. Any grouping of persons and assets enabling the exercise of an economic activity pursuing a specific objective and which is sufficiently structured and independent will therefore constitute such an entity…”[57]Importantly, in Mr Milne’s submission, paragraph 51 requires to be taken into account in this case: “Concerning, secondly, the question whether a group of workers such as that at issue in the main proceedings is sufficiently independent, it is sufficient to note that, in the context of European Union legislation on maintaining the rights of workers, the concept of independence refers to the powers, granted to those in charge of the group of workers concerned, to organise, relatively freely and independently, the work within that group, and, more particularly, to give instructions and allocate tasks to subordinates within the group, without direct intervention from other organisational structures of the employer…”[58]He argued that the emphasis here is that in order for there to be an economic entity, there needs to be instructions from within that group for co-ordination.[59]Addressing the facts in this case, Mr Milne said that it was obvious and undisputed that the first respondent was an economic entity as a whole, operating as a care home in Musselburgh. It provided warmth and shelter to service users.[60]All of the staff identified in the Tribunal’s Judgment required to make use of the facilities within the care home – beds, kitchens, the building itself – to provide service to the service users. Adamwood was an economic entity, selfsufficient, and could organise its resources in order to meet the needs of the service users.[61]What transferred? The Tribunal must identify whether on the occasion of the transfer the part of Adamwood which was transferred became an economic entity for the first time when separating that part from the whole. In his submission, no stable economic entity was identifiable on the occasion of the He gave five reasons for this submission.[63]Firstly, the RGNs, care staff and ancillary staff are not of themselves autonomous; they were providing services. He accepted that a group of staff amounting to an economic entity is capable of being transferred under TUPE. These staff are not autonomous, however.[64]Secondly, the business of care homes is inherently asset-reliant. Here, Mrs Wood made the decision not to sell the care home but to transfer it with a discrete body of staff. The reason that asset did not transfer was that it did not form part of the deal. He accepted that this was not a decisive factor, but it is a major one.[65]Thirdly, there was a substantial gap in the organisation of staff who purportedly ought to have transferred. Mrs Wood was crucial to the organisation of staff. She did not transfer. She was central to the question of whether there was an economic entity capable of being stable and autonomous. That was not part of the agreement between the parties. Without her organising the workforce at its head and being responsible for the coordination and direction of staff, what was transferred was not autonomous nor stable, particularly when considering the tasks of providing care in a care home. There was no doubt that Mrs Wood was in charge of the work at Adamwood and supervised the work done by Ms Smith and others.[66]In addition, Mrs Wood was required to account to the Care Inspectorate in relation to the care of service users or enforcement issues, matters which are central to the provision of care services; she had to ensure that the care home met fire safety standards; she had to deal with Edinburgh Council for the funding of publicly funded residents, and to discuss funding with them; she had the responsibility for ensuring that each shift was adequately covered by the staff, including the RGN; she had to ensure that staff were appropriately in possession of relevant PVG certificates.[67]Mr Milne submitted that the Tribunal cannot fill the gap for the first respondent.[68]Fourthly, there was the transfer of a limited number of tangible assets, which takes the first respondent no further. Those assets were not sufficient to amount to a stable entity.[69]Fifthly, it is not synonymous with the transfer of a labour intensive service that the labour itself transfers. Again, the labour must be in a position to manage itself.[70]He did not accept the first respondent’s assertion that the reason for there was no transfer was that the second respondent deliberately avoided it, but in any event even if they had all been allowed TUPE would not have applied as Mrs Wood did not transfer.[71]Making reference to a transfer, he explained, was not an admission by the second respondent, but an esto argument set out in the ET3.[72]Finally, Mr Milne said that if the Tribunal did find that there was an economic entity, it did not retain its identity post transfer, adopting the analysis of the Employment Appeal Tribunal at paragraphs 33 to 51 of its Judgment[73]The tangible assets were not used by the respondent post transfer, and assets transferred must retain their identity and be used. All that is left is 6 employees who were used, but they cannot be said to have retained the identity of the 29 staff who were employed to care for service users. Only 6 were taken on because TUPE did not apply, but they were the ones offered positions.[74]The physical premises were not used by the second respondent following the[75]There was a clear separation of the 8 service users, being moved into 2 separate care homes. This points away from the entity being retained. Submissions - Claimants[76]Mr Kissen confirmed that he had nothing helpfully to add to the submissions of both respondents. Further Submissions – first respondent[77]Mr Walker having requested a right of reply to the second respondent’s submissions, he spoke to the Fairhurst decision and the submissions made by Mr Milne thereon.[78]He observed that there was no point taken before the Employment Appeal Tribunal as to whether or not this was an undertaking or part of an undertaking. He reiterated that TUPE applies by operation of law.[79]In the Fairhurst case, he said, the Court of Appeal upheld the Employment Appeal Tribunal’s finding that there could be a relevant transfer where there was a transfer to a number of new operators; and also that where an operation ceases by one, there can be a relevant transfer when taken on by others.[80]He pointed out that in the original proceedings, the claimant’s agent served questions on the second respondent, to which they answered on 23 May 2021. He made reference to answer 10, which said that all of the first respondent’s employees were offered a role at Bellevue Lodge, to provide residents with continuity of care (92). The “bank staff” were all found to have been employees.[81]He accepted that the second respondent’s position on objections by the staff on transfer amounted to an esto position taken by them.[82]All employees should transfer to the second respondent, he said. If that is not accepted, there is a clear transfer of an undertaking, or the largest part was transferred to the second respondent. The first respondent can therefore have no employment liabilities for the claimants.[83]Mr Walker then directed the Tribunal to ISS Facility Services NV v Govaerts Case C-344/18[2020] ICR 1115, in which the Court of Justice of the European Union held that in the transfer of multiple employees, the employment contracts of the transferring workers could be split between each of the transferees in proportion to the different employees’ tasks. If they are not divisible, they may be terminated, which would be the responsibility of the transferee.[84]Applying this in these circumstances, Mr Walker said, would mean that since 8 out of 10 residents transferred to the care of the second respondent, 80% of each of the employees’ time could be said to be assigned to the residents who transferred.[85]In response to Mr Milne’s specific submissions, Mr Walker said that there was an economic entity, and the Tribunal should not detract from the finding that there was a transfer. There was a stable economic entity which was more than the care home – staff, assets, contracts, residents were all involved.[86]This was not an “asset-reliant” contract, which Mr Walker described as “oldfashioned ECJ language”. There are a number of factors in this case, an important factor in which is the specialist nursing staff caring for the service users.[87]To say that the nurses and care staff were not autonomous is to misunderstand what autonomous means – they were autonomous, and the nursing care was transferred to 2 other nursing homes. The fact that Mrs Wood did not transfer is irrelevant. If that were important, she would never be able to sell a business. Just because a manager does not transfer does not mean that there was no TUPE transfer.[88]Mr Walker said that if this was not an economic entity, why was a purchase price paid for it.[89]As to whether 6 employees cannot be set to retain the entity of 29 staff, this is not relevant if there is a deliberate avoidance of TUPE. Further submissions by second respondent[90]Mr Milne sought to make further points in response. He indicated that he did not consider it to be an issue that points taken in this Hearing had not been taken in the original or appeal hearings. The matter has been referred to the Tribunal afresh, and his points were well within the Tribunal’s jurisdiction. The reason for the appeal related to the Tribunal’s failure to provide reasons, and that is why the case was remitted.[91]He reiterated that there was no transfer of the care home.[92]He said that referring to the pleadings and further and better particulars is one thing, but that the Tribunal is constrained by the evidence led before it and by the findings in fact.[93]He accepted that a contract is an asset, but that on its own it does not amount to an economic entity.[94]Finally, he disagreed with Mr Walker’s point that there was an economic entity simply because a purchase price was paid. Discussion and decision[95]In reaching our decision, we have taken careful note of the scope of the matter remitted to us in this Hearing, and have sought not to go beyond the limits set within that remit in our Judgment.[96]In its essence, the question before us is succinctly defined by the Employment Appeal Tribunal as follows: “the case will be put solely on the basis of there having been a business transfer under regulation 3(1)(a) TUPE…”[97]Accordingly, without hearing any further evidence, and being reliant upon the undisturbed findings in fact in our earlier Judgment, we now turn to consider whether or not the first respondent is correct in asserting that there was a business transfer under section 3(1)(a) TUPE.[98]We referred, as both parties submitted, to Cheesman & Others v R Brewer Contracts Ltd [2001] IRLR 144, and to the principles outlined in that case at paragraphs 10 and 11,which were quoted by the Employment Appeal Tribunal in its decision. It is appropriate to cite those paragraphs here: “10…(i) As to whether there is an undertaking, there needs to be found a stable economic entity whose activity is not limited to performing one specific works contract, an organised grouping of persons and of assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective…(ii) In order to be such an undertaking, it must be sufficiently structured and autonomous but will not necessarily have significant assets, tangible or intangible…(iii) In certain sectors such as cleaning and surveillance the assets are often reduced to their most basic and the activity is essentially based on manpower…(iv) An organised grouping of wage-earners who are specifically and permanently assigned to a common task may in the absence of other factors of production, amount to an economic entity. …(v) An activity of itself is not an entity; the identify of an entity emerges from other factors such as its workforce, management staff, the way in which the work is organised, its operating methods and, whether appropriate, the operational resources available to it…” “11… (i) As to whether there is any relevant sense a transfer, the decisive criterion for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed. (ii) In a labour-intensive sector it is to be recognised that an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question by also taking over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessors to that task. That follows from the fact that in certain labour-intensive sectors a group of workers engaged in the joint activity on a permanent basis may constitute an economic activity… (iii) In considering whether the conditions for existence of a transfer are met it is necessary to consider all the factors characterising the transaction in question but each is a single factor and none is to be considered in isolation…. However, whilst no authority so holds, it may, presumably, not be an error of law to consider the ‘decisive criterion’ in (i) above in isolation; that, surely, is an aspect of its being decisive, as one sees from the ’inter alia’ in (i) above, the ‘decisive criterion’ is not itself said to depend on a single factor. (iv) Among the matters thus falling for consideration are the type of undertaking, whether or not its tangible assets are transferred, the value of its intangible assets at the time of transfer, whether or not the majority of its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, in which they are suspended. (v) In determining whether or not there has been a transfer, account has to be taken, inter alia, of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on…(vi) Where an economic entity is able to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction being examined cannot logically depend on the transfer of such assets(vii) Even where assets are owned and are required to run the undertaking, the fact that they do not pass does not preclude a transfer.(viii) Where maintenance work is carried out by a cleaning firm and then next by the owner of the premises concerned, that mere fact does not justify the conclusion that there has been a transfer…(ix) More broadly, the mere fact that the service provided by the old and new contract-holder are similar does not justify the conclusion that there has been a transfer of an economic entity between predecessor and successor…(x) The absence of any contractual link between transferor and transferee may be evidence that there has been no relevant transfer but it is certainly not conclusive as there is no need for any such contractual relationship…(xi) When no employees are transferred, the reasons why that is the case can be relevant as to whether or not there was a transfer…(xii) The fact that the work is performed continuously with no interruption or change in the manner or performance is a normal feature of transfers of undertakings but there is no particular importance to be attached to a gap between the end of the work by one sub- contractor and the start by the successor.”[99]A different authority to which reference was made was the Inner House decision in Lightways (Contractors) Ltd v Associated Holdings Ltd [2000] IRLR 247, in which it was said that it is legitimate to have regard not only to the events directly constituting the transaction but also to the surrounding circumstances, which may include the attitudes adopted by a party in anticipation of the transaction. The court went on: “If the evidence discloses that a transaction has been deliberately structured with a view to avoiding the regulations applying, a tribunal is entitled to scrutinise with care whether that attempt has or has not been successful. A declared intention that TUPE will apply, made prior to the transaction by the alleged transferee, may make even easier an inference of transfer.”[100]We then turned to consider the question before us, namely whether or not there has been a business transfer within the meaning of Regulation 3(1)(a) of TUPE 2006. We remind ourselves that Regulation 3(1)(a) provides: “(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;…”[101]It is also appropriate to refer to Regulation 3(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.”[102]As Mr Walker pointed out, this means that the Tribunal requires to consider the following questions: 1. Was there a transfer to another person? 2. Was there an “economic entity”? 3. Was there a transfer of an economic entity which retained its identity after the transfer? 4. Was that entity situated, immediately before the transfer, in the United Kingdom?[103]Applying the principles set out above, the Tribunal addressed the different aspects of the test under Regulation 3(1)(a).[104]Firstly, there is no dispute that the fi respondent was an undertaking situated in the United Kingdom immediately before the transfer, on the basis that they operated the Adamwood Nursing Home at 47C Ravensheugh Road, Musselburgh, East Lothian, a care home which cared for elderly individuals on a residential basis, providing nursing and care services to meet their individual needs.[105]Secondly, there was a transfer to another person, in that part of the first respondent’s business or undertaking transferred to the second respondent.[106]Thirdly, the Tribunal requires to consider whether there was an economic entity, which, in accordance with Regulation 3(2), would be an organised grouping of resources, which had the objective of pursuing an economic activity, whether or not that activity is central or ancillary.[107]This is a point on which there is significant dispute between the parties.[108]In this case, we consider the guidance in the Cheesman case, which held that the identity of an entity emerges from factors such as its workforce, management staff, the way in which the work is organised, the operating methods and, whether appropriate, the operational resources available to it.[109]The first respondent operated as a limited company. Mairi Wood was one of its shareholders, and was for all practical purposes responsible for the running and management of the work in the Adamwood Nursing Home. There was an organised grouping of employees, carrying out nursing and caring duties for a group of residents in the Home. The work was organised by way of a shift pattern, with a number of staff required to be deployed on each shift, including one RGN (registered general nurse) on each shift who had responsibility for nursing care and decisions.[110]There were 12 nurses together with Mairi Wood who were employed to carry out nursing duties immediately before the transfer, together with 12 care assistance responsible for caring for residents.[111]The nurses and carers were central to the provision of specialist nursing and caring services which were the function of the first respondent’s undertaking immediately before the transfer. The essential reason for existence of the business was to provide those services.[112]In addition, there were 4 employees, comprising a chef, 2 cooks and a handyman, who were employed to carry out ancillary services, which were essential to supporting and facilitating the central services provided by the first respondent in the Home.[113]The resources available to the first respondent in providing these services were, primarily, the Home itself, as well as physical assets such as beds, lifting aids, commodes and other essential equipment.[114]As the Cheesman case determines, in a labour-intensive sector it is to be recognised that a group of workers engaged in a joint activity on a permanent basis may constitute an economic activity. In our judgment, this group of nursing, caring and ancillary staff did constitute an economic activity. Residents were charged a fee for residing in the Home, but encompassing the services provided while residing there.[115]Mr Milne, for the second respondent, accepted in his submission that Adamwood was an economic entity, self-sufficient and able to organise its resources in order to meet the needs of the residents.[116]However, he disputed that there was a stable, sufficiently structured and autonomous entity at the time of the transfer. He argued that what the Tribunal must do is identify whether on the occasion of the transfer the part of the first respondent which transferred became an economic entity for the first time when separating that part from the whole.[117]Mr Milne relied upon an analogy, several times in his submission, relating to a pie and a book. He said that if a pie has a slice removed, it remains a pie; if a book has some pages removed, it is no longer a story. We confess that we struggled to understand this analogy. We considered that in both cases, the pie and the book retained their identity, but were incomplete.[118]However, we did comprehend his basic point, which was that Adamwood was of itself an economic entity, but what purportedly transferred was only part, and was separated from the whole. This was not, as we recalled it, a point made at the original Hearing, but we recognised that the EAT’s remit to us was broad enough to allow each party to make whatever submissions they considered relevant to the question of whether or not there was a transfer.[119]In our judgment, however, the guidance in the authorities directs us to the finding that there was a stable economic entity immediately before the transfer, comprising an organised grouping of resources. The Home itself – by which we mean the building – did not transfer, but that is only one factor which we require to consider. What is of considerable importance, on top of the factors which we have identified above, is that the organised grouping of resources was providing services to a group of elderly residents in a care home setting; the majority of that group of residents was moved from the Home to 2 different care homes under the control of the second respondent. This was not purely about the staff employed in the first respondent’s business, but the residents, the contracts to care for whom were the very business whom they were employed to carry out. That the Home did not transfer is not, in our judgment, a decisive factor, but one of a number of factors to be considered.[120]The second respondent also argued that there was no economic entity. We did not accept this. It was clear from the evidence that the second respondent had reached agreement with the first respondent to pay them in respect of each resident taken over. That there was an ongoing dispute between the respondents about the amounts to be paid did not alter the fact that some payment was agreed to be due.[121]Accordingly, in our judgment, there was a stable economic entity which existed immediately before the transfer.[122]However, we must then consider whether that economic entity transferred to the second respondent, and retained its identity after doing so.[123]The second respondent’s argument was that even if an economic entity existed prior to the transfer, it did not transfer to them, nor did it retain its identity post-transfer.[124]The parties disagreed strongly about whether the entity was comprised of an organised grouping of autonomous staff. Mr Milne’s argument was that they were not autonomous, as they required to be managed by Ms Wood, who did not leave with the residents nor suggested that she should transfer to the second respondent’s employment. Mr Milne maintained that since Ms Wood did not transfer, and she was crucial to the organisation and management of the Home and of the staff. Without her what was transferred was neither autonomous nor stable. He referred to the Scattolon judgment of the CJEU, and in particular to paragraph 51 in support of his argument that the management of the group is of significance (paragraph 51): “Concerning, secondly, the question whether a group of workers such as that at issue in the main proceedings is sufficiently independent, it is sufficient to note that, in the context of European Union legislation on maintaining the rights of workers, the concept of independence refers to the powers, granted to those in charge of the group of workers concerned, to organise, relatively freely and independently, the work within that group, and, more particularly, to give instructions and allocate tasks to subordinates within the group, without direct intervention from other organisational structures of the employer…”[125]Mr Walker maintained that this represented a misunderstanding of the meaning of autonomous, and insisted that the group of staff to transfer, those providing nursing, caring and ancillary services, did comprise an autonomous group of staff.[126]In assessing this, we also took into account paragraph 42 of Scattolon, in which the court said that “Any grouping of persons and assets enabling the exercise of an economic activity pursuing a specific objective and which is sufficiently structured and independent will therefore constitute such an entity…”[127]In our judgment, the first respondent’s position is to be preferred here. The absence of Ms Wood from the transferring group does not, in our judgment, direct us to conclude that the grouping was not independent or autonomous. That would logically require the finding that if a manager of a grouping of staff were not to transfer, that would undermine the argument that any of that staff were to transfer. We do not accept that. The staff who transferred were an organised grouping whose independence from the first respondent’s business is demonstrated by their relationship of caring, nursing and serving the residents who transferred. The residents moved from the first respondent’s business, leaving no business behind, and as a result, the organised grouping of staff transferred with them. They would still be organised by way of shifts, and on each shift there would be a mix of nursing and caring staff, including at least one RGN. They would still be caring for elderly residents in a care home setting. They did not require to be located in Adamwood in order to provide those services, and to that extent were independent in the sense that their primary association was with the residents rather than the building.[128]Mr Milne suggested, at one point in his submission, that among other things, a “workforce which could not be managed” could not comprise the transfer of an economic entity. We rejected his description of this group of staff as a workforce which could not be managed. That was not an accurate description of this group.[129]Mr Milne argued that Ms Wood’s responsibility for the implementation of regulations of the Care Inspectorate or the Scottish Social Services Council meant that the organised grouping could not be said to be independent or autonomous if she did not transfer with them. We did not accept this argument; we considered that the responsibility for the implementation of regulatory requirements would be transferred to the second respondent in respect of the organised grouping which transferred with the residents, along the same model as that adopted by the first respondent.[130]The limited transfer of assets was said to have taken the first respondent no further; in our view, it does not take the second respondent further either. It is a factor to be taken into account but not of itself decisive.[131]We do consider that the care sector is a labour-intensive sector; the primary functions which are required by a contract for the care of elderly residents are carried out by the staff who look after them.[132]It was clear in this case that the staff were not all transferred to, or recruited by, the second respondent at the point of transfer. We take into consideration our findings in the original Judgment, to the effect that we found the second respondent’s attitude to this process to be such that they were attempting to evade the application of TUPE.[133]In reaching that conclusion we were influenced by the fact that at the outset of discussions between the respondents, when it was anticipated that the residents would move to a new, purpose-built care home to be constructed by the second respondent in Haddington, a draft agreement was reached between them in which it was agreed that TUPE would apply to the transfer of the staff who were then caring for the residents. In our judgment, that demonstrates that the second respondent was aware, and believed, that TUPE would apply to the transfer of staff when the residents were taken over, and that they altered their position when that agreement no longer applied, in order then to decide whether or not to take on any staff. It is not, therefore, a decisive factor in our judgment that the staff did not, as a matter of fact, transfer to the second respondent.[134]We have reached the conclusion that the economic entity – the organised grouping of nursing, caring and ancillary staff serving the group of elderly residents in a care home setting – did retain its identity post-transfer. The fact that the residents were moved into 2 separate homes run by the second respondent does not undermine that finding. The services provided before and after the transfer were very similar. As Mr Walker pointed out in his submission, the two homes chosen by the second respondent were chosen because they were nursing homes, and as Lucy Duffin’s email to Mairi Wood pointed out, there was continuity of care and support from friendly, known staff to the ladies of Adamwood.[135]Accordingly, it is our judgment that there was a business transfer in this case under Regulation 3(1)(a) of TUPE 2006, and that the case should now be listed for a hearing to deal with the outstanding issues agreed to be left from the original Hearing. It is proposed that a Preliminary Hearing be listed to take place in order to determine the scope and issues for that Hearing.