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Boiling over?: TUPE decision

28 November 2013 #Employment

When a client contracted to build boilers at a power station changed sub-contractors, the employees of the previous sub-contractor (A) claimed that they had transferred to the new sub-contractor (B).

The Employment Tribunal which first considered this decided that there had been a TUPE service provision change.  This was on this basis that the work of B would not be of a short-term duration.  In total five boilers needed to be insulated and cladded and the work as a whole undertaken by both A and B took 18 months to complete.  However, the work of B only took for 8 months.

The Employment Appeal Tribunal (EAT) determined that the Employment Tribunal decision was wrong in considering the entire 18-month period.  It should have taken account only of the 8 months that B took to complete the work.

The EAT also, in considering the wording of regulation 3(3)(a)(ii) of TUPE – “the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short term duration” - noted that an “event” as well as a “task” must be short-term.  The example was given of a leak in an oil pipe which would be a “event” but which could continue for a long period; however this would not give a TUPE exemption as it would not be a short-term single specific event.

The case: Swanbridge Hire & Sales Ltd v Butler and others UKEAT/0056/13.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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