TUPE

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Robert Sage Ltd t/a Prestige Nursing Care v O’Connell EAT – 13 March 2014

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This case raises two issues:

(i)  The approach to the issue of intention in Reg 3(3)(a)(ii):  the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration”

(ii)  Whether, when an employee is excluded from working with a particular client, she is nevertheless assigned to the organised group of employees undertaking that work when that work is subject to an SPC (Reg 4(1))?

The Facts

The 6 employees were support workers engaged in caring for a person, X, who had severe learning difficulties.   The client was North Somerset Council.    Allied provided the care and employed the employees until 28 February 2012 when it ceased to do so.  All the employees apart from  T provided the care.   However T had been suspended for some time before that date.   Prestige took over the contract from 1 March but refused to employ the employees.   Matters were complicated because prior to Allied terminating its contract there had developed a strained relationship between X, X’s family and the support workers and a serious incident led to Allied terminating the contract.  The Council intended to apply to the Court of Protection for permission to transfer X to new accommodation in a town further away from X’s family.  Allied maintained there was an SPC to which TUPE applied.  Prestige maintained there was not.

Following the termination of the contract with Allied, Prestige were engaged to cover the care on ‘an interim basis’ until the Court of protection hearing which was expected to take place in about 4 weeks.    Matters did not proceed as expected and the earliest hearing for the Court of Protection was mid July 2012.  By the date of the PHR in December 2012 the application for the Court of Protection had been withdrawn.      Meanwhile T had gone through a disciplinary process and in early 2012 was able to return to work but the Council made a specific request to Allied that she not be placed with X.

The ET judgment

On issue (i):  The EJ held that the whilst at the date of the transfer the Council “wished and hoped” the task would be of a short term duration they had no control over the length of time it would take and no certainty of the outcome if there was a Court of Protection hearing.   There was no evidence  that the Council had obtained legal opinion as to the outcome of the application before the Court of Protection or the likely length of time it would take.  the Council therefore did not hold the requisite intention.

On issue (ii):  the issue was a contractual one.  As T was still employed by Allied in a role that required her to provide support to X and her contract had not been terminated in light of the Council’s request she remained to the group of employees undertaking that work at the date of transfer.

The EAT judgment

On issue (i):  The EAT held  that an “intention” is more than merely to contemplate.  An “intention” is directed to an objective which is a possibility.  By contrast a person may hope for or desire something which is unachievable.  It was not necessary for the purpose of determining the appeal to have a fully worked definition of “intends” within Regulation 3 of TUPE.  All that is necessary is to decide whether the EJ erred in holding that a hope or a wish is not an intention within the meaning of TUPE Reg 3(3)(a)(ii).  A “hope” or “wish” was not an intention and as that finding of fact had not been challenged the appeal could not succeed.

On issue (ii) ;  The EAT held that the EJ had erred in describing the issue as essentially contractual one.  The question that had to be asked is:  Where would the employee be required to work immediately before the transfer?  Whilst contract plays a part in answering that question in some case the contractual place of work is superseded by a prohibition on working there.  in reaching this conclusion Mrs Justice Slade applied United Guarding Services Ltd v St James’s Security Ltd [2004] EAT.

Comment

(i)  We now know that a hope or wish will probably not mount to an intention that a task will be of a short term duration but we do not yet have clear guidance on what will amount to an intention for the purpose of Reg 3(3)(a)(ii).

(ii)  The EAT judgment on issue (ii) was entirely correct.  If an employee is prohibited from undertaking work with the organised group immediately before the transfer and that prohibition is permanent then it is difficult to see how she can be regarded as being  assigned to it.

Link to judgment

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