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Single specific event or task of short-term duration
[ch 12: pages 434-435]Whether a task or event is of short-term duration is a question of fact for the tribunal to decide. The following examples are taken from the BEIS non-statutory TUPE guidance, 2014:
BEIS example: One-off event
A single conference organised by a contractor on behalf of a client would be a one-off event. Even if the contractor organises a team to put on the conference, if the client later decides to use a different contractor to organise a further conference, the members of the first team will not be required to transfer to the new contractor.
BEIS example: Task or event of short-term duration
Imagine two contracts to provide security for the Olympic Games. The first is to provide security advice to the organisers in the years running up to the event. The second is to supply security staff to protect athletes during the event. Both contracts have a one-off character, in the sense that they both concern a specific event. However, the first runs for a significantly longer time that the second. The first would be covered by TUPE, but the second would not.
When deciding whether a task is intended to be “short-term”, what matters is the client’s intention when they enter into the service contract, not what actually happens over time (Swanbridge Hire & Sales Limited v (1) Butler (2) GMB (3) Unite and (4) Kitsons [2013] UKEAT/0056/13/BA). This is because the existence of a TUPE transfer can never depend on how events gradually unfold over time. Instead, everyone affected needs to know clearly and in advance whether there is to be a service provision change, especially since the legal effect of a TUPE transfer is an automatic change in the identity of the employer.
Organisations sometimes manipulate documentation to try to avoid TUPE. In the next case, two security guards were allowed to produce evidence of background events to show that an incoming contractor’s documentary evidence, carefully assembled to make it look as if their client had a “short-term” intention, was a sham:
Two security guards were caught up in a dispute over TUPE because a new company, First Call, took over security at the site where they worked and refused to employ them. They received no compensation so they issued tribunal claims. First Call claimed to have been engaged by the new site owners under a contract of “short-term duration” to guard the vacant plot pending the arrival of building contractors. However, evidence shown to the tribunal demonstrated that a supposed “refurbishment contract” with an external contractor was a fake, and by the hearing date, no planning permission had been granted and no construction had taken place. The EAT agreed that this evidence showed that the “intention” to engage the new company on a short-term basis was not genuine.
ICTS UK Limited v Mahdi & Others [2015] UKEAT/0133/15/BA