Inability to Control Length of Contract Meant TUPE Exception did not Apply
A client’s “hope and wish” that a task will be short-term is not sufficient for it to fall within the exception in TUPE for tasks intended to be of short term duration.
In Robert Sage t/a Prestige Nursing Home v O’Connell, A’s employees were providing home care to X under a contract with the local authority. X had severe learning difficulties and after a serious incident at X’s house, A gave notice to terminate its contract with the local authority with effect from 28 February 2012. The Council decided that it would apply to the Court of Protection to transfer X to new accommodation which would obviate the need for home care. Prestige agreed to cover the care requirements from 1 March 2012 for an interim period pending the Court of Protection hearing, which was expected to be four weeks later.
A argued that its employees transferred to Prestige under TUPE. Prestige denied this and provided its own support workers to deliver the care package. The Court of Protection proceedings did not go well and by December 2012 the application had been withdrawn. Prestige continued to provide the care in X’s home.
A’s employees claimed automatic unfair dismissal against Prestige and the Council. The employment tribunal found that there had been a service provision change. Under an exception contained in TUPE, TUPE does not apply on a change of contractor if the client intends that the activities will be carried out by the new contractor in connection with a task of short-term duration. However, the tribunal considered that this exception did not apply as it could not be said that the Council intended the cover provided by Prestige to be short-term, as it had no control over the duration of the contract and could not be certain of the outcome of the application to the Court of Protection. The Council’s “hope and wish” that it would be of short duration did not amount to an intention.
The EAT upheld the tribunal decision. The word “intends” should be given its ordinary meaning. A “hope and wish” that a particular state of affairs would be short term was not the same thing as an intention. It could not be said that the Council “intended” the Prestige contract to be short term as it had no control over the length of the contract. TUPE therefore applied in this case.
The decision in this case demonstrates just how narrow the TUPE exception is. Many would be forgiven for thinking that this was precisely the sort of case which was meant to be exempted from the application of TUPE as the Council envisaged at the outset that the contract with Prestige would only be a short term arrangement. This case suggests that the exception will not apply if the duration of the contract is dependent on factors outside the client’s control, as the client will not be able to demonstrate an intention that the task will be short-term.
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