A contract for insulation work on boilers at a power station was originally granted to Kitsons in December 2010. Following problems with the work, the contract was subsequently granted to Swanbridge in October 2011. The work took a further eight months for Swanbridge to complete.
Kitsons argued that the change in provider amounted to a service provision change so that the employees working on the contract transferred to Swanbridge. Swanbridge argued that there was no TUPE transfer, relying on the exemption in TUPE that says that if a contract relates to "a single specific event or task of short-term duration" the SPC provisions will not apply to it. They said that the boiler insulation work was just such a task or event.
The EAT said that there were three key issues that the tribunal should have decided when considering whether the boiler insulation work was "a single specific event or task of short-term duration":
At the time of the alleged transfer, was it the client's intention that the activities would be carried out "in connection with a single specific event or task of short-term duration"?
Whether the activities to be carried out were in connection with either a single specific event or a task (identifying what that event or task was).
Whether the single specific event or task identified was of short-term duration.
The tribunal could only decide whether the "single specific event or task of short term duration" exemption applied when it had considered each of those points, so the case was remitted for fresh consideration of the issues.
Readers with a particular interest in TUPE may remember the Liddell's Coaches v Cook case we reported on in November 2012. In that case the EAT suggested that the words "of short term duration" only qualify the concept of a task, not that of a single specific event. By way of contrast, in this case the EAT suggests that the words "short term duration" qualify an "event" as well as a "task". Further guidance from the EAT is needed to resolve this point.