Transferring activities must be "intended" to be short-term for TUPE exemption to apply, UK EAT confirms

Out-Law News | 20 Mar 2014 | 4:44 pm | 2 min. read

A "hope and wish" that services being transferred to another provider will only be carried out for a short time is not enough to exempt the workers carrying out that service from protection under UK employment regulations, the Employment Appeal Tribunal (EAT) has confirmed.

EAT judge Mrs Justice Slade agreed with the original employment tribunal that a number of support workers who provided care for an individual with severe learning difficulties (X) were protected under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). TUPE protects the rights of employees whose employers are taken over by new owners; or where work is outsourced, brought back in-house or there is a service provider change (SPC).

The judge said that the employment tribunal was right to find that in order for an SPC to be excluded from the scope of TUPE, the regulations required that there be an "intention" that the task being carried out would be "of short-term duration".

"In my judgment the terms 'hope' or 'wish' do not become an 'intention' depending upon the factual background against which the terms are used," she said. "The terms have different meanings and are not to be elided."

"Neither [the care provider] nor the Council challenge the finding of fact by the [employment judge] that it was 'a hope and a wish' of the Council that the duration of care of X to be provided by [the care provider] until the Court of Protection gave its approval to the move would be short term. The observation by the [judge] that the Council had no control over the length of time it would take and indeed whether the Court of Protection would give their approval to the planned move of X was not challenged. In my judgment on those facts the [judge] did not err in concluding that the hope and wish of the Council did not constitute an 'intention' within the meaning of TUPE Regulation 3," she said.

The original care provider, Allied, had cancelled its contract with North Somerset Council to provide care for X. The council then engaged Prestige to provide the care, pending approval of changes to X's care plan by the Court of Protection. Prestige had argued that Allied's staff had not transferred to it as the council had only intended for the care to be "a task of short-term duration" under TUPE. However, the tribunal judge said that this could not be the case as the council had no control over how long the court process would take or whether approval for the changes would even be granted.

The EAT upheld another ground of appeal in relation to an employee who had been disciplined and was no longer allowed to work with X. This particular employee could not therefore belong to the group of employees that were subject to the SPC, Mrs Justice Slade said. Regardless of the terms of her contract, the issue would primarily be decided based on "where the employee would be required to work immediately before the transfer", she said.