The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE 2006”) provisions should not be applied to a service provision change connected with a single specific event or task of short term duration.
In Liddell’s Coaches v Cook and others UKEATS/0025/12, Mr Cook was employed as a coach driver by Liddell’s Coaches (“Liddell’s”) who provided school transport services for local authorities. In August 2010 Liddell’s won five contracts to transport school children to other schools in the area while their school was being rebuilt . Each of the five contracts lasted until July 2011. The new school was not due to be completed until June 2012 so Liddell’s tendered to continue providing the transport services for another year. Liddell’s only won one of these contracts with another company, Abbey Coaches Ltd (“Abbey”), securing three. Liddell’s terminated Mr Cook’s employment at the end of July 2012. They thought that Mr Cook’s employment would be transferring over to Abbey under the TUPE service provision change rules and therefore ceased employing him. Abbey, however, did not accept that Mr Cook had become their employee. Mr Cook subsequently brought unfair dismissal proceedings.
The Tribunal upheld Mr Cook’s claim against Liddell’s and found that TUPE 2006 did not apply because the transport contract was in relation to “a single specific event” and was of “short term duration” within the meaning of regulation 3(3)(a)(ii) TUPE 2006. The Tribunal interpreted regulation 3(3)(a)(ii) TUPE 2006 as meaning that if reliance was placed on the single specific event part of the provisions, the event in question must also be of short term duration to fall within the exclusion. In this case, the rebuilding of the school was a single specific event and, given that typical transport contracts between local authorities and coach operators were for between three and five years, the contract was sufficiently short term. Liddell’s appealed to the EAT.
The EAT agreed that the Tribunal had reached the right decision that there had been no service provision change under TUPE between Liddell’s and Abbey, although it did not fully support the Tribunal’s reasoning. In the EAT’s view regulation 3(3)(a)(ii) TUPE 2006 will apply where the relevant activities are in connection with either a single specific event or a task of short term duration (emphasis added). In the EAT’s view the phrase “single specific event” stands alone; it means a single happening or occurrence. The EAT considered that it would be unnecessary for TUPE to stipulate that a single specific event must be short term for the regulation 3(3)(a)(ii) TUPE 2006 exclusion to apply since a single specific event is, by definition, of short term duration. The EAT was satisfied that both the rebuilding of the school and the transport contracts awarded were of “short term duration”. Liddell’s appeal was dismissed.