EAT Rules on Scope of TUPE Exception

TUPE did not apply to a one year contract to transport school children.  The contract was covered by the exception in TUPE for activities provided in connection with a task of short-term duration.

In Liddell’s Coaches v Cook, C worked as a coach driver for Liddell’s Coaches.  In 2010, Liddell’s had been awarded five one-year contracts to transport school children to other schools after it was discovered that their own school had been built over a mineshaft.  Before the contracts expired, Liddell’s tendered to provide a similar service for the 2011/12 academic year.  The new school was on schedule to be completed by June 2012 and so there would be no further need for transport after that.  Liddell’s were only successful in obtaining one contract, with the others being awarded to another provider, Abbey.

C was dismissed in July 2011 and Liddell’s argued that his employment transferred to Abbey under TUPE.  Abbey denied this.

The employment tribunal held that there had not been a service provision change (SPC) within TUPE.  Reg 3(3)(a) provides that there is no SPC if the client intends that the activities contracted for will be carried out “in connection with a single specific event or task of short-term duration”.  Here the activities were to be carried out in connection with a single specific event, the re-building of the school and since school transport contracts were typically awarded for three to five years and not just one, the 2011/12 contract was of short-term duration.

The EAT agreed with the Tribunal that TUPE did not apply, but not with its reasoning.  It could not see how the re-building of the school could be described as “an event”.  However, it did consider that it was a "task" of short-term duration and on this basis found that TUPE did not apply.  The tribunal had been entitled to find that, in the context of transport contracts usually being awarded for several years, a one-year contract was short-term. 

The EAT considered the scope of the exception in Reg 3(3)(a) and in particular whether the short-term duration requirement applies both to single specific events and to tasks, or just to tasks.  It considered that it only applies to tasks.  In its view, a single specific event is a single occurrence and connotes short-term duration in any event. 

It also considered that if relying on the specific single event part of the exception, the fact that activities are provided over a long period is irrelevant.  Provided the activities under the contract are intended by the client to be carried out in connection with a single specific event, TUPE will not apply even if the activities are provided over a long period. 

This view runs contrary to the Government’s view expressed in its Guidance.  There the Government suggests that TUPE would apply to a contract to provide security advice to the organisers of the Olympic Games covering a period of several years running up to the event as the contract runs for a long period.  On the other hand, TUPE would not apply to a contract to provide security staff for the event itself as it only runs for short period.  The EAT is critical of the Guidance, saying that the Olympics were a single specific event and the fact that the activities were carried out over a long period is irrelevant.