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Single specific event or task of short-term duration
[ch 12: pages 422-423]Whether a task or event is of short-term duration is a question of fact for the tribunal.
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 (Source: BIS TUPE Guidance 2014).
To qualify for the exemption from TUPE, the one-off service must also be of short-term duration.
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 (Source: BIS TUPE Guidance 2014).
When deciding whether a task is of “short-term duration” , what matters is the client’s intention as to its duration at the time the service contract is entered into. It makes no difference that, as events unfold, a task ends up taking longer than originally planned. As long as the original task was supposed to be both “one-off” and “short-term” , there will be no service provision change if a new service provider is brought in to complete it. This is because the existence of a TUPE transfer can never depend on how events develop over time. Instead, all affected parties, including employees, must know with certainty, every time a service contract changes hands, whether or not the identity of the employer has changed. Otherwise the rules would be unworkable (Swanbridge Hire & Sales Limited v (1) Butler (2) GMB (3) Unite and (4) Kitsons [2013] UKEAT/0056/13/BA).
However, events before and after the ending of a service contract will still be important, because what happens in practice can provide good evidence of the genuineness (or otherwise) of a client’s intentions, and can help to uncover attempts at TUPE avoidance. For example:
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 that the site owners had engaged them 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 said that this evidence could be relied on to show 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