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What is meant by “single specific event or task of short-term duration”?
[ch 2: pages 21-22]Whether a task or event is of short-term duration is a question of fact for the tribunal. The revised 2014 BIS guidance gives as an example of a one-off event a single conference organised by a contractor on behalf of a client. Even if the contractor uses an organised team to put on the conference, this is a one-off event, meaning that if the client later uses a different contractor to organise a further conference, the members of the first team will not be required to transfer to the new contractor.
The BIS guidance goes on to suggest that to qualify for exemption, the one-off service must also be of short-term duration. For example, imagine two contracts to provide security for the Olympic games. The first is for the provision of security advice to the event organisers in the years running up to the event, while the second is to supply security staff to protect athletes during the event itself. Both contracts have a “one off” character, in the sense that they concern a specific event, but the first runs for a significantly longer period than the second. The first would be covered by TUPE, suggests the BIS guidance, while the second would not.
In any event, what matters is the client’s intention at the date of the service provision change, not what unfolds in practice, as the following case demonstrates:
Contractor Shaws sub-contracted cladding work on the boilers at the Pembroke Power Station to Kitsons, but Shaws cancelled the contract part way through the work, and appointed another sub-contractor, Swanbridge, to complete the work.
Swanbridge argued that there was no service provision change, and refused to accept responsibility for the Kitson workers. In particular, Swanbridge tried to argue that by completing only what was left of the contracted work, they were engaged on a “single specific event or task of short term duration”.
The EAT rejected this argument. The correct test, said the EAT, is whether a client, when it contracts for the task to be completed, intends that task to be of long or short-term duration. What happened under a previous contractor, or how long any project ends up taking in practice, is irrelevant.
The rules on service provision change must work, the EAT said, in a way that ensures everyone affected knows clearly, at the moment a new contractor is taken on, whether a transfer has taken place. The case was sent to another tribunal to decide again.
Swanbridge Hire & Sales Limited v (1) Butler (2) GMB (3) Unite and Kitsons Environmental Europe Limited [2013] UKEAT/0056/13/BA