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TUPE: where there is a change of client and "tasks of short term duration"

21 August 2014 #Employment

It is a rule that in relation to a TUPE service provision change that the client for whom the services are provided must be the same before and after the transfer. This rule derives from the Court of Appeal case of Hunter v McCarrick [2013] IRLR 26. In a further recent case on the issue, Horizon Security Services Limited v (1) Ndeze (2) The PCS Group, the client had changed when a management company managing a site on local authority land lost the contract when the authority took back control themselves as the site was due for demolition. The authority then appointed a different security company to the one used by the management company. This meant that the client before the transfer was the private management company, whereas after the transfer it was the local authority.

The service provision change rules did not apply and the employees were not entitled to transfer, the EAT has confirmed.

The second point in the case is that a service provision change under TUPE cannot occur where the client intends the contract to relate to an event or task of short term duration. The contract in question to the new security company was of limited duration, simply to look after the site pending its demolition. This was therefore a task of short term duration and for this second reason there was no service provision change.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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