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.