Liddell's Coaches v Cook & Ors (Transfer of Undertakings : Service Provision Change)

For the exclusion in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a single specific event stands separately from a task of short-term duration. An event, being a single occurrence, inherently connotes short duration.

Whether a task is of short-term duration is a question of fact and degree. The assessment is made in the employment context and by reference to the particular service-provision arrangement. A tribunal may find a one-year contract short term where it is atypical in the relevant market and serves a finite, temporary requirement. Where the exclusion applies, there is no service provision change and employment contracts do not transfer under TUPE.

Liddell's Coaches provided school transport for children temporarily relocated while Gargieston Primary School was rebuilt. Its contracts for the temporary transport service were for one school year. Abbey Coaches won three replacement contracts for the following school year, each ending when the new school was expected to be ready.

The Employment Tribunal held that the arrangement was connected with a single specific event and was of short-term duration. It therefore held that the exclusion in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied, so that Mr Cook's employment had not transferred to Abbey. Liddell's appealed. Abbey cross-appealed on other disputed requirements for a service provision change.

1. Appeal dismissed and cross-appeal dismissed. The Employment Tribunal was entitled to find that regulation 3(3)(a)(ii) applied. TUPE was consequently disapplied and Mr Cook's contract did not transfer to Abbey.

2. The phrase single specific event in regulation 3(3)(a)(ii) stands alone. The words of short-term duration qualify task, not event. An event is a single happening or occurrence and itself connotes short duration. The contrary view, which would make the duration of activities connected with the event decisive, conflates the activities with the event. This construction was not necessary to the disposal, since the Tribunal's conclusion was sustainable on either reading.

3. Whether a task is of short-term duration is a matter of fact and degree for the first-instance tribunal. It must be assessed in the employment context and against the circumstances of the particular service provision. The Tribunal permissibly treated the one-year contracts as short term: such contracts were unusual in the relevant market, the need had arisen urgently and temporarily, and the new school was expected to remove the need for transport at the end of the school year.

4. The construction of the school was more naturally a task than an event. That distinction did not affect the result. The relevant task was transporting the temporarily relocated children during the 2011/12 school session, and it was of short-term duration.

5. The cross-appeal was academic. The Tribunal had not adequately analysed the separate requirements concerning an organised grouping of employees, its principal purpose, and whether the activities were fundamentally or essentially the same. Those matters would have required determination had TUPE not been disapplied. A worker's time spent on activities may show assignment to an existing grouping, but does not itself establish the required grouping or its principal purpose. Employment Tribunals should address all material issues and exercise particular care before pressing a lay representative to concede a point.

• Employment Appeal Tribunal: appeal and cross-appeal dismissed; the Employment Tribunal's judgment was upheld.
• Employment Tribunal, Glasgow: judgment registered on 9 February 2012. It held that TUPE did not transfer Mr Cook's employment to Abbey, found Liddell's had unfairly dismissed him, and awarded him £3,912.90. It held that Mr Gold lacked the qualifying service for unfair dismissal but awarded notice pay.