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24-04-2014

As most people are aware, TUPE applies where there is service provision change. An exception to this is where the tasks undertaken are intended to be of a short term duration. The case of Robert Sage t/a Prestige Nursing Home v O’Connell demonstrates just how narrow this exception can be.

X’s employees were providing care to Y in Y’s home under a contract with the Local Authority.

X gave notice to terminate its contract with the Local Authority. The Council decided that it would apply to the Court of Protection to transfer Y to a nursing home which would dispense with the need for home care. Prestige agreed to cover the care for an interim period pending the Court of Protection hearing, which was expected to be four weeks or so later.

X argued that its employees transferred to Prestige under TUPE. Prestige refused to accept this and engaged its own staff to look after Y. The Court of Protection application was withdrawn for unrelated reasons and Prestige continued to provide the care in Y’s home.

X’s employees claimed automatic unfair dismissal against Prestige and the Local Authority.

The Employment Tribunal found that there had been a service provision change. The exception did not apply as it could not be said that the Local Authority intended the cover provided by Prestige to be short-term. It had no control over the duration of the contract and could not be certain of the outcome of the application to the Court of Protection.

The EAT upheld the tribunal decision.

Sarah Rushton (srushton@moonbeever.com)

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.

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