A number of carers were employed by Allied to look after a vulnerable adult (X). Allied were contracted by the local Council to provide the care. In 2012 Allied decided they were no longer willing to continue and the Council applied to the Court of Protection to change the care arrangements. It was initially thought that this would take a few weeks but several months later the case had still not been decided. Meanwhile, another provider, Prestige, was contracted to take over caring responsibilities. Prestige did not take on the carers and they brought unfair dismissal claims.
At this point two issues arose:
- whether the change of provider from Allied to Prestige fell within the exemption from the TUPE service provision change rules for the situation where the client intends that the activities will be carried out "in connection with a single specific event or a task of short-term duration". The argument was that the client, the Council, intended that the activities (X's care) would, following the service provision change, be carried out by the transferee, Prestige, in connection with a "task of short term duration".
- whether one of the claimants, who had been suspended, was one of those who would be TUPE transferred; the question was whether she was assigned to the "organised grouping of workers" who were subject to the transfer.
The Tribunal found that there had been a TUPE transfer, concluding that it was merely "a hope and wish" that the outsourcing to Prestige during the Court of Protection process would be of short term. This did not constitute an intention, at the point of the service provision change, that activities would be carried out by a transferee in connection with a task of short term duration.
On the second point the Tribunal decided that despite the Council's and Allied's reluctance to allow the suspended employee to continue her duties and the fact that, had her employment with Allied continued, that would clearly have been a good basis for terminating the contract, this had not taken place and she was therefore in employment at the time of the transfer. Her employment contract transferred, therefore.
The EAT agreed with the Tribunal that a hope/wish that the activities would be carried out by a transferee in connection with a task of short term duration was not an intention. The EAT illustrated its conclusion on the distinction by commenting "a person may hope to run a marathon but it is meaningless to say he intends to do so if he has never run more than a mile!"
However, the EAT overturned the Tribunal on the second point, holding that as the suspended claimant was prohibited from working with the group of employees looking after X, that employee could not be assigned to the group and was not therefore subject to the service provision change.