TUPE’s public–private divide: Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board

This note reviews the decision of the Employment Appeal Tribunal in Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board and its consideration of the limitation of the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to ‘economic activity’. This limitation, when combined with the exclusion from the application of the transfer of undertakings legislation of ‘public administrative’ reorganisations, creates a public–private divide—a ‘public sector exclusion zone’—in the application of the transfer of undertakings regime. This note argues that the doubts expressed by the EAT in Bicknell about the decision in Nicholls & Anor v London Borough of Croydon & Ors—in which it was held that the purchasing and commission of goods and services do not constitute an economic activity for the purposes of the transfer legislation—are well founded. The approach adopted in Nicholls, which was based on EU competition law authorities addressing the entirely different context of the regulation of competition, should therefore be revisited. Applying a purposive TUPE-specific approach, the purchasing and commission of goods and services should, depending on the factual matrix, be treated as capable of constituting an economic activity for the purposes of TUPE. This approach would, consistent with the objectives of the transfer legislation, enable the (better) protection of the employment of those engaged in purchasing and commissioning activities, whether or not conducted under the broad umbrella of the public sector, who are affected by reorganisations and similar exercises otherwise satisfying the requirements of a TUPE transfer.