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The recent employment tribunal case of ICTS UK Ltd v Mahdi shows there is uncertainty about TUPE and short-term contracts. Dr John McMullen explains the implications for employers.
The service provision change rules in the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 are very wide and are meant to cover most situations where activities performed by a service provider on behalf of a client change hands. These will amount to service provision change TUPE transfers.
But the rules will not apply where it is the intention of the client that the activities will, following the service provision change, be carried out by the new service provider in connection with a single, specific event or task of short-term duration. This is the so-called short-term task exception.
There has been some litigation on what is meant by the intention of the client in this regard. For example, the condition of “short-term duration” applies to both a “task” and a “single specific event” (such as in SNR Denton UK LLP v Kirwan).
And it has been held that a “hope or a wish” that a contract be for a single, specific event or task of short-term duration is not the same as an intention that it be so. This was established by the Employment Appeal Tribunal (EAT) in Robert Sage Ltd t/a Prestige Nursing Care Ltd v O’Connell. In that case, a local authority contracted with a health and social care provider to look after a vulnerable adult, hoping that the arrangement would be short term pending the