EAT TRANSFER OF UNDERTAKINGS – Transfer
The Employment Judge held that there was a service provision change within the meaning of Regulation 3(1)(b)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 therefore a transfer of an undertaking when the client gave the contract for the work of cladding boilers at a power station to a new contractor. The application of Regulation 3(3)(a)(ii) in the circumstances required findings by the Employment Judge on (1) the intention of the client at the time of the alleged service provision change; (2) whether the activities to be carried out by the new contractor were in connection with a single specific event or in connection with a task, identifying what that event or task was; (3) whether the single specific event or task was of short- term duration. The Employment Judge erred in failing to consider and decide the intention of the client at the time of the change of contractor. The Employment Judge also erred in deciding whether the ‘event’, as she held it to be, of the insulation and cladding of the boilers was short-term by reference to how long cumulatively the outgoing contractor together with the incoming contractor spent on the work. Where there is no evidence of intention, applying SNR Denton UK LLP v Ms Kirwan and others [2013] ICR 101, it may be implied from ‘the event’. However, in this case, it appears that there was evidence likely to have been relevant to whether the client intended at the time the new contractor was engaged that their activities would be in connection with a task of short-term duration.
Dicta of Langstaff P in SNR Denton that ‘of short-term duration’ in Reg 3(3)(a)(ii) qualify ‘event’ as well as ‘task’ preferred to those of Lady Smith in Liddell’s Coaches v Cook and others UKEAT/0025/12 that they do not.
Appeal allowed. Case remitted to a different Employment Judge.
Slade DBE J
[2013] UKEAT 0056 – 13 – 1311
Bailii
England and Wales
Employment
Updated: 26 November 2021; Ref: scu.518544
