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TUPE and short term contracts or tasks

A recent EAT case has provided some useful pointers on the exception rule around “single specific event or task of short term” work in relation to TUPE.

In Swanbridge Hire v Butler & Others, a company called Kitson Environment Europe was working on an insulation and cladding contract for five power stations for Shaw Group Ltd. During the contract, Kitson stopped providing the services and Swanbridge took over to completion. A number of employees argued that TUPE should have applied and raised a claim at tribunal.

TUPE and short term contracts, events or tasks

Within the legislation, there is a rule that TUPE will not apply if the client’s intention, following the change, is for the service to be carried out as a one-off (single, specific) event or a task of short term duration. In this particular case, the contract of work lasted 18 months and Swanbridge operated the contract for the last 10 months. The employment tribunal decided that this was too long a period to represent a single event or a task of short term duration and that TUPE therefore applied.

Swanbridge subsequently appealed this decision. The EAT held that the original tribunal had not examined the client’s intention at the time of the supposed service provision change. It also declared that it was a mistake to decide on the status of the work by considering the cumulative time that Kitson and Swanbridge had spent on the contract. The appeal succeeded and the EAT referred the case back to tribunal to be considered again.

This reminds us of how complicated TUPE can be and how important it is to get legal advice in all possible service provision cases.