TUPE – tasks of short term duration

The Claimant contracted with Middlesex University to provide security services at a number of its sites. One site closed in 2012 and a group of the Claimant’s employees were assigned to guard the premises. In July 2013 the site was purchased by a Malaysian university.

The Claimant offered to enter into a new contract with this university and in the meantime continued to provide the security services. In November 2013 the university informed the Claimant that it would be appointing a new security company, FCSG Limited from 11^th November. The assigned employees did not transfer to FCSG – and brought Tribunal claims.

The question was whether the change of contractor was a service provision change under regulation 3 of TUPE. FCSG denied that the Claimant’s employees had transferred, arguing, among other things, that whereas the Claimant’s employees had been providing securities services to an empty site, FCSG would be providing security whilst the university redeveloped the land. Thus its argument was that the new contract for security provisions was intended by the university to relate to a “task of short term duration” i.e. the renovation of the site and as such the change was excluded under regulation 3 (3)(a)(ii).

The Employment Judge accepted the argument that the contract related to a short term task. He considered that the relevant intention was that of the university at the 11^th November 2013 and that he could not look at subsequent events in identifying that intention. The Judge considered the relevant task was the provision of the security services for an unoccupied site to retain valuable buildings in good condition without being vandalised and that it was reasonable to infer from FCSG that the site would only be unoccupied for a short period of time during redevelopment – thus it was a short term operation. The Judge therefore concluded that there was no TUPE transfer and the Claimants appealed to the EAT.

The EAT allowed the appeal on the basis that the Employment Judge had erred in assuming that he could not look at subsequent events when identifying the university’s intention as at 11^th November. The Claimant’s evidence was that at the time of the hearing no planning permission had been granted and no building work had commenced on the site. The EAT felt that this was relevant evidence and the Judge should have taken it into account. Evidence of no planning permission being obtained and no work being carried out would, in the EATs view, have affected the Judge’s decision by doubting the reliability of the evidence of FSGS as to the short term duration of the task. It would raise questions whether the task could genuinely have been intended to be of short term duration. The EAT was not unanimous on this, but the case was remitted to the same Employment Judge.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.