IVF nurse wins TUPE transfer dispute after being turned away by new provider
A senior staff nurse with 12 years' service was found to have transferred to the new IVF service provider under TUPE, despite the new provider's claim she was not assigned to the organised grouping.
1 min read · Last updated 18 May 2026
Case details
- #tupe-transfer
- #assignment
- #organised-grouping
- #ivf-service
- #nhs-contract
- #senior-nurse
Key facts
- The claimant was employed by the NHS Trust from 28 January 2008 until August 2020 as a Band 6 Senior Staff Nurse in the Ocean Suite IVF unit.
- The NHS Trust withdrew from the NHS IVF contract and the contract was awarded to CRGW (Plymouth) Limited, which took over the service on 5 August 2020.
- All other staff in the Ocean Suite were accepted for transfer by the new provider, but the claimant was not.
- The claimant spent at least 50% of her time on IVF activities (NHS and private) and acted as deputy to the Lead Nurse.
- The Tribunal found that the claimant was assigned to the organised grouping of employees and her employment transferred to the new provider under TUPE.
- The new provider had admitted there was a relevant transfer and a deliberately organised grouping for the IVF contract.
Timeline
-
Claimant started employment
Mrs C Collinson began working for University Hospitals Plymouth NHS Trust as a Band 6 Senior Staff Nurse.
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NHS Trust decided to withdraw from IVF contract
The Trust gave 12 months' notice to terminate the NHS IVF contract with the CCGs.
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CCGs awarded contract to CRGW (Plymouth) Limited
The new provider won the tender for the NHS IVF/assisted conception service.
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Diary exercise started
Staff recorded time spent on IVF vs non-IVF work over two weeks; claimant's record showed 16% IVF time, but Tribunal found this unrepresentative.
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Ocean Suite vacated due to COVID-19
R1 vacated the Ocean Suite; staff were temporarily redeployed; no NHS IVF activity until August.
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R1 changed position on claimant's transfer
R1 initially agreed with R3 that claimant was not eligible for TUPE transfer, but later reversed after reviewing her evidence.
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Transfer date and claimant turned away
The claimant attended R3's premises but was not permitted to work; R3 maintained she was not transferred.
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R1 confirmed claimant's transfer
R1 wrote to claimant stating her employment transferred to R3 on 5 August 2020 under TUPE.
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Claim form presented
The claimant brought claims for redundancy payment, breach of contract, and unfair dismissal.
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Preliminary judgment issued
Employment Judge Goraj ruled that the claimant was assigned to the organised grouping and her employment transferred to R3 on 5 August 2020.
The legal issue
Whether the claimant was assigned to an organised grouping of employees whose principal purpose was carrying out the activities of the NHS IVF service contract, so that her employment transferred to the new provider under the TUPE regulations.
The outcome
The tribunal ruled that the claimant's employment transferred to CRGW (Plymouth) Limited on 5 August 2020 under TUPE. The key reasons were that the claimant spent at least 50% of her time on IVF activities, acted as deputy to the Lead Nurse, and the new provider had admitted there was a relevant transfer and a deliberately organised grouping for the IVF contract. The tribunal found the diary exercise showing only 16% IVF time was unrepresentative due to the COVID-19 disruption. No compensation was awarded at this preliminary stage.
Lessons & takeaways
- If you spend a significant proportion of your time on a service that is being transferred, you may be assigned to that organised grouping even if you also do other work.
- A diary exercise conducted during an unusual period (e.g., pandemic disruption) may not accurately reflect your normal duties and can be challenged.
- Admissions by the new provider about a relevant transfer and organised grouping can strengthen your case that you are part of the transfer.
What this case shows in practice
This case highlights the importance of the 'assignment' test under TUPE when a service changes hands. The claimant, a Band 6 Senior Staff Nurse in an IVF unit, had worked for the NHS Trust for 12 years. When the NHS IVF contract was awarded to a new provider, all other staff were accepted for transfer, but she was turned away. The new provider argued she was not assigned to the organised grouping because she also did some non-IVF work and a diary exercise showed only 16% of her time on IVF.
However, the tribunal found that the diary exercise was unrepresentative because it was conducted during the COVID-19 pandemic when the unit had vacated its premises and normal IVF activity had ceased. The tribunal accepted that the claimant spent at least 50% of her time on IVF activities and acted as deputy to the Lead Nurse. Crucially, the new provider had already admitted there was a relevant transfer and a deliberately organised grouping for the IVF contract, which undermined its position.
What the losing side could have done differently
The new provider could have avoided this dispute by properly assessing the claimant's role before the transfer date. Relying on a flawed diary exercise from an abnormal period was a mistake. A more thorough review of her actual duties over a longer period would have shown her significant involvement in the IVF service.
Why this result matters
For employees in similar situations, this case confirms that assignment is a question of fact, not just a percentage of time. Even if you do some work outside the transferred service, you can still be assigned if your principal purpose is the service. The decision also shows that admissions by the transferee about a relevant transfer can be used to support your case.
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