More complexity over the application of the TUPE service provision change rules has been added to the mix by the EAT in Liddell's Coaches v Cook, a novel case about the exemption for one-off services.
The case arose out of transport arrangements while a school was being rebuilt. Liddell's coach company entered into five, year-long, contracts to transport pupils to alternative schools for the 2010/11 school year. Before the end of that year, the contracts for the 2011/12 school year were retendered and Liddell's won only one contract, three others going to a new provider. The issue was whether TUPE applied to transfer a Liddell's employee to the new provider.
TUPE does not apply to a service provision change if the client intends that the activities will be carried out "in connection with a single specific event or task of short-term duration". The Government's 2009 official guidance explains that this exemption applies only to events or tasks that are both one-off and of short-term duration. The guidance contrasts a contract for the provision of security advice over a period of several years in the run-up to the Olympics (to which it says the exemption would not have applied because the contract was not of short duration) with a contract to provide security staff at the Games themselves (to which the exemption would apply).
The EAT in Liddell's Coaches v Cook upheld the tribunal's decision that the contract to provide transport came within the exemption and there was no TUPE transfer. The EAT disagreed with the distinction made in the Government guidance; its view was that the term "single specific event" stands alone. In this case the activities were carried out by the incoming contractor in relation to the rebuilding works, which the tribunal found to be "a single specific event". And, in any event, the task to be carried out by the new provider was of "short term duration", since it was for a period of just one year (as opposed to the three to five years of a typical school transport contract).