Labour & European Law Review Weekly Issue 368 07 May 2014
There is no service provision change under regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), if the client “intends” that the activities following the task will be of “short-term duration”. In Robert Sage Ltd t/a Prestige Nursing Care Ltd and anor v O’Connell and ors, the Employment Appeal Tribunal (EAT) held that a hope and a wish does not amount to an “intention” by a client.
Allied Healthcare Group took over the care of X, who had severe learning difficulties, on behalf of North Somerset Council on 5 July 2011. When they terminated the contract at the end of February 2012, the Council contracted with Prestige Nursing Care Ltd to undertake the work on an ad hoc basis until the Council’s application to the Court of Protection to move X to another town had been heard.
Allied informed the six support workers who had been delivering the care to X that the transfer to Prestige constituted a TUPE transfer. Another worker - Mrs Truman - who had been suspended by Allied in October 2011 - was told that following a specific request by the Council, she would not be returning to look after X. Prestige argued there had not been a TUPE transfer as the transfer of X’s care constituted a “task of short-term duration” under regulation 3. The support workers brought claims of unfair dismissal (among other things).
By the date of the pre-hearing review in December 2012, the Council had withdrawn the application to the Court of Protection and Prestige was continuing to care for X in her home.
Regulation 3 of TUPE states that there is a service provision change (SPC) when activities cease to be carried out by one contractor and are then carried out by another, as long as, immediately before the SPC, there is an “organised grouping of employees” whose main purpose is to carry out those activities and the client intends that the activities will be carried out by the transferee “other than in connection with a … task of short-term duration.”
The employment judge concluded that although the Council had a “hope and wish” that the service provision change would not last long, that did not constitute an intention, as required under regulation 3. TUPE did therefore apply and the contracts of the support workers transferred to Prestige.
In respect of Mrs Truman, the judge held that although there was initially some uncertainty as to whether or not she was still assigned to the contract to care for X because of the disciplinary proceedings, given the terms of her contract the Council appeared to accept that she was bound to provide care to X and had therefore also transferred.
The EAT agreed with the tribunal that the terms “hope and a wish” did not constitute an intention and the judge was therefore correct to conclude that the exception in regulation 3 did not apply in this case. As such, there had been a TUPE transfer.
However, it held that the tribunal was wrong to conclude that the test of whether Mrs Truman was assigned to working with X in her own home was “essentially a contractual one”. It should have decided the issue by reference to where she would have been required to work immediately before the transfer. As she would not have been required to care for X, she could not have been assigned to the grouping of employees and her employment did not therefore transfer.
In finding that a hope and a wish did not amount to an intention, the EAT said that a transferee cannot intend to do something which was not reasonably achievable. This limits the scope for transferees to argue that they are exempt from TUPE merely because they intend the service provision change to be of short term duration.