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TUPE Exception: Task of Short Term Duration

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Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

What is the meaning of the "single specific event or task of short term duration" exception to service provision change TUPE transfers?

The EAT has given helpful guidance in Swanbridge Hire v Butler & ors.

Kitson Environment Europe had a contract for insulation and cladding work on five power station boilers on behalf of Shaw Group Ltd.  There was a parting of the ways and Kitsons were replaced by Swanbridge, who finished the work.  Was this a service provision change under the TUPE regulations?

Under Reg 3 (3) (a) (ii) of TUPE 2006 there will not be a service provision change if the client intends that the activities are, following the change, to be carried out in connection with a single specific event or task of short term duration. The employment tribunal held that the insulation contract was not "a single specific event or task of short term duration".  The contract was "lengthy and protracted".  It took 18 months to complete, of which 8 months were in the hands of Swanbridge.  There was therefore a service provision change and TUPE applied.

The EAT allowed an appeal against this finding.  First, the Employment Judge failed to consider the intention of the client at the time of the alleged service provision change.  The exception applies where it is the client's intention to contract for a single specific event or task of short term duration, and the tribunal failed to make findings in this regard.  Secondly, the Employment Judge also erred in deciding whether the 'event' (although the EAT considered it was a 'task') of insulation and cladding of the boilers was short term by reference to how long, cumulatively, both the outgoing and incoming contractor spent on the work.

Finally the EAT expressed a view on opposing views held by Langstaff J in SNR Denton UK v Kirwan and Lady Smith inLiddell's Coaches v Cook as to whether "of short term duration" qualifies "event" as well as "task".  The EAT expressed a preference for Langstaff J's view that "of short term duration" qualifies "event" as well as "task".