Dr Marcus Bicknell & Anor v NHS Nottingham and Nottinghamshire Integrated Commissioning Board

For TUPE, economic activity has the same meaning as in EU competition law because both regimes regulate aspects of the single market. It means offering goods or services on a market. Purchasing or commissioning is not economic activity merely because another body ultimately supplies services on a market. The relevant consideration is the use made of the purchase by the purchasing entity. The protective purpose of Council Directive 2001/23/EC does not justify a different test, and TUPE contains no hidden extension beyond the Directive.

Employees of North Nottingham CCG and the British Medical Association challenged a reorganisation involving the dissolution of six clinical commissioning groups and transfer of their functions. Dr Bicknell had been dismissed. The Employment Tribunal rejected the TUPE transfer and consultation claims, although it upheld his ordinary unfair dismissal claim. The Employment Appeal Tribunal dismissed the appeals in [2024] EAT 103, while expressing doubt about aspects of the reasoning in Nicholls. The central issue in the Court of Appeal was whether commissioning healthcare services, together with ancillary functions, constituted economic activity under TUPE and whether the public-administration exclusion applied.

Lady Justice Elisabeth Laing gave the leading judgment. Baker LJ and Singh LJ agreed. The Court of Appeal unanimously dismissed the appeal.

1. Meaning of economic activity. The term undertaking in the Acquired Rights Directive and Directive 2001/23/EC was intended to have the same meaning as in the EU competition provisions. Both bodies of law regulate aspects of the single market. The protective purpose of the Directive did not justify a separate, wider employment-law test.
2. Effect of FENIN. The Court of First Instance and the Court of Justice in FENIN treated the offer of goods or services on a market as the characteristic feature of economic activity. Purchasing is not economic activity as such. Its nature is assessed by reference to the subsequent use made of the purchased goods or services by the purchasing entity. FENIN did not establish that purchasing by one body becomes economic activity because another entity uses the purchase for an economic purpose, or because the purchase is connected with a market. The approach in Nicholls was therefore correct.
3. Domestic implementation. Although section 38 of the Employment Relations Act 1999 permitted regulations going beyond the Directive, the relevant provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 contained no hidden relaxation of the meaning of economic activity.
4. Public authority and ancillary functions. If there is no economic activity, TUPE does not apply. In a case on the boundary between economic activity and public authority, the two categories are mutually exclusive, so a tribunal which confidently finds no economic activity need not separately apply the ten questions identified in Nicholls. That qualification was confined to cases of that kind; non-economic activity may exist without being an exercise of public authority.
5. The Employment Tribunal had considered the alleged ancillary activities, made findings open to it on the evidence, and rejected the evidence concerning pharmacy services. There was no material error of law. No remittal was required.

• Court of Appeal (Civil Division) — Appeal dismissed: [2026] EWCA Civ 21.
• Employment Appeal Tribunal — Appeals dismissed, with some doubt expressed about the approach in Nicholls: [2024] EAT 103.
• Employment Tribunal — TUPE transfer and consultation claims rejected. Dr Bicknell’s ordinary unfair dismissal claim succeeded; his dismissal would also have been automatically unfair if TUPE had applied.