Out-Law / Your Daily Need-To-Know

EAT provides clarity on what it means to provide a "short-term" service

Out-Law News | 15 Nov 2012 | 10:59 am | 2 min. read

A contract for a "single specific event" need not necessarily be of "short-term duration" to prevent workers being caught by regulations governing the employment rights and status of a particular worker when there is a change in service provider, the Employment Appeal Tribunal (EAT) has said.

The Transfer of Undertakings (Protection of Employment) (TUPE) Regulations protect the rights of employees whose companies are taken over by new owners or where work is outsourced, brought back in-house or the service provider is changed. An exception to the regulations excludes a service provision change (SPC) where the activities provided are in connection with "a single specific event or task of short term duration".

Upholding a decision by an employment tribunal that TUPE did not apply to a bus driver whose employer was contracted to provide transport for schoolchildren over the course of a year when they were 'decanted' from their school, Lady Smith said in her ruling that a "single specific event" and a "task of short term duration" were different things. TUPE cannot apply to a contract for a specific event, regardless of the duration of that event, she said.

"[I]t respectfully seems to us that the term 'single specific event' stands alone," she said. "An 'event' is a single happening or occurrence; in philosophical terms, it is an occurrence involving a qualitative or quantitative change or complex of changes located in a restricted portion of time. Further, 'event', of itself, connotes short duration; to refer to a single specific event of short term duration is, we consider, tautologous. There was no need for the draughtsman to apply the phase 'of short term duration' to 'single specific event'."

The driver, a Mr Cook, was employed by Liddell's Coaches. In 2010, the company was awarded five contracts to provide transport services for children who had been 'decanted' into other schools within their local authority area when it was discovered that their school had been built over a mineshaft. The contracts were granted for one year. Before the contracts ended, the company tendered to provide a similar service for the following year, which would be the final year before a new school was constructed. It only obtained one contract for that year, while a further three contracts were won by a rival, Abbey Coaches.

Liddell's dismissed Cook in July 2011, assuming that his employment would be transferring over to Abbey under TUPE. However, Abbey did not accept that Cook had become its employee.

The original employment tribunal found that TUPE did not apply because the decant transport contract was in relation to a single, specific event and was of short-term duration. In its judgment, however, the tribunal referred to government guidance indicating that any single specific event relied on in the context of an SPC would also have to be of short-term duration for the exception to apply. They went on to explain that public sector transport contracts were typically for 3-5 years rather than a period of one year, as in this case.

Lady Smith agreed that, on the evidence, the contracts were short term. She agreed that TUPE did not apply to Cook's circumstances, meaning that the driver had been unfairly dismissed by Liddell's.

"The Tribunal also, of course, found that the activities were in connection with a single specific event of short term duration," she added. "For our part, we have difficulty in categorising the construction of a building as an 'event' although it is plainly a task. That does not, however, matter since the Tribunal went on and concluded that the event in question was of short term duration and, again, that was the only conclusion which, sensibly, they could have reached in the circumstances."

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