In Prestige Nursing Care v O'Connell, the Employment Appeal Tribunal has given further guidance on one of the exceptions which dis-applies TUPE in the context of a service provision change.
In an outsourcing context, where a client intends that the outsourced task will be of short term duration there is no service provision change.
In this case, a local authority appointed Prestige when its existing contract with the transferor, Allied, was terminated. However, the duration of Prestige’s assignment was a matter outside of the local authority’s control because it relied on the approval of a third party. Whilst the local authority “wished and hoped” that Prestige would be engaged only for a short period, it had no means of ensuring this is the case.
It was unsurprising that TUPE was found to have applied. The exemption applicable to tasks of short term duration was always likely to have a narrow interpretation. Whilst previous cases emphasise that the exemption will look at the normal duration of contracts for particular tasks, Prestige is authority for the proposition that for a task to be “intended” as short term, the achievement of the task within a short period of time must be a realistic possibility.