TUPE: Task of short-term duration

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Following a service provision change, is a 'hope or wish' of a client that a service would be carried out as a task of short-term duration an 'intention' which exempts the service provision change from TUPE?

No, held the EAT (Slade J) in Prestige Nursing Care v O'Connell, turning down an appeal against the finding that there was a transfer of staff to the Appellant.

The transferor, Allied, cancelled its contract with a local authority to care for a vulnerable adult, X. The local authority engaged Prestige to care for X pending the Court of Protection's approval of changes to X's care plan, a matter outside the local authority's control. Prestige did not accept that Allied's staff transferred to it, arguing that the local authority intended that the care for X was intended to be a task of short-term duration.

The EAT agreed with the Tribunal that in these circumstances, the exception to TUPE in Regulation 3 (3) (a) (ii) - where a client intends that a task would be of a 'short-term' duration - would not apply. As the Tribunal found, the local authority had no control over how long it might take or whether approval would even be granted for changes in X's care plan, so it could not 'intend' that the task of caring for X pending approval would be of a short-term duration, "...an 'intention' is directed to an objective which is a possibility...", "...intending to do something which is not reasonably achievable is meaningless..."

Another limb of the appeal succeeded, however, as a care worker prohibited by the local authority from providing care to X could not be said to have been assigned to the staff transferring despite a contractual assignment to those staff, so one claim against Prestige was dismissed.