Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O'Connell & Ors

The short-term-task exception in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 must be established by the party relying on it. “Intends” bears its ordinary meaning. A client’s hope or wish that activities will be short-lived is not, without more, an intention that they will be carried out for a short-term task.

For assignment under regulation 4, contractual terms are relevant but are not decisive. Where an employee is absent immediately before the transfer, the primary question is where they would have been required to work at that time. An employee prohibited from working in the transferring grouping is not assigned to it, even if their contract previously related to that work.

Allied Healthcare Group Ltd provided a care package for X on North Somerset Council’s behalf. When Allied’s contract ended, Prestige took over the care from 1 March 2012. The Employment Judge held that this was a relevant service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and that all seven support workers, including Mrs Truman, transferred to Prestige.

Prestige appealed. It contended that the Council intended Prestige’s work to be a task of short-term duration, engaging the regulation 3(3)(a)(ii) exclusion. It also contended that Mrs Truman was not assigned to the transferring group because the Council had prohibited her from working with X before the transfer.

1. Appeal allowed in part. The appeal against the finding of a relevant transfer affecting six claimants was dismissed. The appeal concerning Mrs Truman was allowed, and a substituted finding was made that her contract did not transfer.

2. Regulation 3(3)(a)(ii) is an exception to the general rule that a change from one contractor to another constitutes a service provision change. The party relying on the exception must prove it. “Intends” has its ordinary meaning; it is more than contemplation, hope or wish.

3. The Employment Judge’s unchallenged finding was that the Council merely hoped and wished that Prestige’s care of X would be short-term pending a Court of Protection decision. That hope and wish did not become an intention because of the surrounding circumstances. The Employment Judge therefore correctly held that the exception did not apply and that the contracts of the six workers assigned to X transferred to Prestige.

4. Under regulation 4, the relevant question for an employee absent immediately before transfer is where the employee would have been required to work at that time. Contractual terms assist but do not determine that question. The Employment Judge erred by treating the test as essentially contractual.

5. Mrs Truman had been prohibited from returning to work with X, and no negotiation had occurred to remove that prohibition. The only permissible conclusion was that she would not have been required to care for X immediately before transfer. She was therefore not assigned to the transferring grouping, and her contract did not transfer to Prestige.

• Employment Appeal Tribunal: Prestige’s appeal was dismissed as to six claimants and allowed as to Mrs Truman.
• Employment Tribunal: Following a pre-hearing review, Employment Judge Tess Gill held that all seven claimants transferred from Allied to Prestige on 1 March 2012 under the Transfer of Undertakings (Protection of Employment) Regulations 2006.