April 29, 2014

Tasks of short term duration under TUPE

A group of 7 support workers provided home care to an individual with severe learning difficulties. They were all employed by a health care group which, after a serious incident at the service user’s home, gave notice to terminate the contract with the local authority to whom it was contracted to provide the care for the individual. As a result of a number of difficulties, the council made an application to the Court of Protection seeking to transfer the individual to new accommodation which would negate the need for home care. It was agreed that once the original provider had ceased providing care for the individual, Prestige Nursing Care would cover the care requirements on an ad hoc basis while the outcome of the application to the Court of Protection was awaited. The original service providers alleged that there was a TUPE transfer, as a service provision change to Prestige had taken place. Prestige did not accept this on the basis that the provision of care was "temporary emergency cover pending the decision of the Court of Protection" and therefore work of short term duration. As it turned out, the application took longer than was originally intended and was eventually withdrawn so that Prestige continued to provide home care to the individual.

The Tribunal had found that there was a service provision change under TUPE and this was upheld by the EAT on the basis that, for the exception of the short-term duration to apply, the particular task or event had to be more than "a hope or a wish" that it would be short term. It had to be as strong as an intention that it would be short term; whereas in this case, for various reasons, the home care provided by Prestige continued for very much longer than a short term duration.

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

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