Be careful what you wish for — TUPE applied despite client wanting outsourcing to be short term

A number of carers were employed by Allied to look after a vulnerable adult (X). Allied was contracted by the local council to provide the care. In 2012, Allied decided it was no longer willing to continue and the council applied to the Court of Protection to change the care arrangements. It was initially thought that this would take a few weeks, but several months later the case had still not been decided. Meanwhile, another provider, Prestige, was contracted to take over caring responsibilities. Prestige did not take on the carers and they brought unfair dismissal claims.

At this point, two issues arose: (1) whether the change of provider from Allied to Prestige fell within the exemption from the TUPE service provision change rules for the situation where the client intends that the activities will be carried out ‘in connection with a single specific event or a task of short-term duration’ — the argument was that the client, the council, intended that the activities (X’s care) would, following the service provision change, be carried out by the transferee, Prestige, in connection with a ‘task of short-term duration’; and (2) whether one of the claimants, who had been suspended, was one of those who would be TUPE transferred — the question was whether she was assigned to the ‘organised grouping of workers’ who were subject to the transfer…

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