22 November 2012 #Employment
The Employment Appeal Tribunal has provided guidance on what is meant by a “task of short-term duration” when interpreting the Transfer of Undertakings (Protection of Employment) Regulations 2006.
In Liddell’s Coaches –v- Cook and others UKEATS/0025/12 the EAT considered the Tribunal’s ruling that Mr Cook had not transferred to Abbey Coaches.
Mr Cook was employed as a driver for Liddell’s Coaches. In August 2010 Liddell’s had been awarded one year contracts by East Ayrshire Council to transport children who had been decanted from Gargieston Primary School to other schools – this was because the Gargieston site had to be rebuilt as it was on a mineshaft.
When Liddell’s tendered to provide a similar service for the following year, the contract on which Mr Cook had worked was won by Abbey Coaches. Liddell’s terminated Mr Cook’s contract of employment in July 2012 because they thought that his employment would be transferring over to Abbey but Abbey did not accept that Mr Cook had become their employee. Mr Cook therefore brought a claim of unfair dismissal against both Liddell’s and Abbeys.
The Tribunal concluded that a TUPE situation had not existed and therefore Liddell’s would be liable for his unfair dismissal. In reaching this decision they relied upon the wording of Regulation 3(3)(a)(ii) which states that, for there to be a relevant transfer, the activities following the service provision change must be intended to “be carried out by the transferee other than in connection with a single specific event or task of short-term duration.” The Tribunal found that the one-year contract awarded by the Council was of a short-term duration as typically the Council would award contracts to coach operators for periods of three to five years and so it was unusual for the Council to award contracts for only one year’s duration. In addition the parties had agreed that the rebuilding of the school was a single specific event.
The EAT agreed that the transport contract had been “of a short-term duration”. The EAT pointed out that what is short term depends upon the context and will therefore be a matter of fact and degree. The one-year contracts here had been short term in nature in light of the fact that the Council normally awarded contracts of a longer duration and the new contract awarded to Abbey was only going to be for one year as the new school would be ready thereafter.
However, the EAT disagreed that a “single specific event” had occurred, although this did not affect their decision that TUPE did not apply in this situation. Whereas the Tribunal had considered that the interpretation of the Regulation 3(3)(a)(ii) meant that there had to be both a “single specific event” and a “task of short-term duration” which was in line with governmental guidance, the EAT ruled that the correct interpretation was that there could be either a “single specific event” or a “task of short-term duration”. The EAT also noted that the term ”event” suggests short duration.
As a result in this situation TUPE did not apply.