Liddell’s Coaches v Cook is another case involving a contract to bus children from one place to another (see also Redfearn -v- UK). In this case the legal issue concerned the exclusion of service provision changes “other than in connection with a single specific event or task of short-term duration” from TUPE. When East Ayrshire council found out it had built a primary school over a mineshaft, it had to “decant” the children to other schools while it rebuilt it. To do that it entered into five one year contracts with Liddells, a bus company. Typically, contracts for school transport were of three to five years’ duration. The next year more contracts were let to cover the final months of the rebuild. Liddells only won one of the five contracts, with the others going to other companies including three to a company called Abbey. Two drivers lost their jobs at Liddells, and the question was whether they had transferred to Abbey or not.
The Employment Appeal Tribunal upheld the decision of an Employment Tribunal that they had not. The contract was for a single specific event – to cover the period during which children had to be bussed elsewhere whilst the school was rebuilt. As Lady Smith pointed out, there was no need for that event also to be of short term duration to fall within the exception – there were two separate exceptions – one relating to single events and the other relating to events of short duration, notwithstanding Department of Business Innovation and Skills guidance suggesting the contrary. As it happened, in context, one year was a short term duration in any event.
The EAT judgment was very specific in its analysis of what constitute long term and short term activities:
Whilst we can think of “activities” related to “single specific events” which may not be of short term duration – such as the provision of security advice during the planning stages prior to a major event as referred to in the DTI Guide – that, with respect, is a separate matter. The Olympics example cited in the DTI Guide does not, we consider, demonstrate that TUPE would not be disapplied in the first contract to which they refer. The Olympic Games were plainly a single specific event; they opened on a specific planned date (27 July 2012) and closed on a specific planned date (12 August 2012) seventeen days later. They were of short term duration. The example given does not, we consider, show that a single specific event could be long term, however lengthy or extended the period over which security advice referred to was provided. There, the client intention is still shown to be that the security advice activities were to be carried out in connection with a single specific event which was of short term duration and TUPE is, accordingly, disapplied. That is not surprising since, as we say, we cannot envisage anything that can properly be characterised as being an event being other than of short term duration. The fact that activities carried out in connection with an event are to be long term does not make the event itself long term. The flaw in the DTI thinking appears to us to be conflate “activities” and “event”. They seem to think that TUPE will not be disapplied if the activities in question can be shown to be long term but, whatever problems there may be with the wording of reg 3(3)(a)(ii), on no view can it be read so as to qualify the word “activities” with the phrase “of short term duration”. The grammar used does not permit that interpretation.
And who said that TUPE issues have a tendency to be technical and confusing?!
The EAT was also clearly unimpressed by the approach to the matter taken by the Employment Tribunal:
13. We observe, in passing, that the Tribunal did not analyse the facts to determine whether or not the other relevant provisions of TUPE were satisfied. In particular, they did not address the question of whether or not the activities carried out by Abbey for the client were fundamentally or essentially the same as those which Liddell’s had carried out for the client immediately prior to the transfer, they did not address the question of whether or not Liddell’s had organised a group of employees by reference to the client’s requirements under the five Gargieston decant transport contracts, and they did not address the question of whether or not, if there was such an organised grouping, it had had as its principal purpose the carrying out of those requirements, all of which would have arisen if they had concluded that the requirements of reg 3(3)(a)(ii) were satisfied.
14. For the reasons we explain below, we find that the Tribunal did not err in law in reaching their conclusion that reg 3(3)(a)(ii) was not satisfied but had we concluded otherwise, the Tribunal’s reasoning would have given us no assistance as to whether, on the facts, those other requirements of TUPE had been met or not. We note that the Tribunal proceeded on the basis that there was a relevant organised grouping of employees – indeed, they appear to have perhaps pressured Mrs Walker into giving up on her primary submission that it had not been shown that Liddell’s had any such grouping – but they base their approach solely on the fact that Mr Cook spent more then 20 hours per week on driving the ‘decant’ schoolchildren. That, however, is beside the point. It may show that if there was a relevant grouping of employees then Mr Cook was assigned to it (as reg 4(1) requires) but it does not of itself show that there was a relevant grouping of employees or that that group had the relevant activities as their principal purpose. The Tribunal state, in paragraph 5, that the provisions of reg 3(3)(a)(i) were satisfied but there is no sign of them having addressed these questions in the light of their findings in fact; their conclusion seems to be based simply on Mrs Walker’s concession. Had we had to consider the case on Mrs Walker’s first submission (as recorded by the Tribunal at p.8 lines 5-7), we would not have been prepared to regard it as conceded or withdrawn in these circumstances; the observation of the Tribunal on which they pressed her did not relate to the entirety of the point that she was seeking to make, namely that reg 3(3)(a)(i) as a whole had not been shown to be satisfied.
15. In the event, the Tribunal’s failure properly to address these other issues which obviously arose does not matter but it would have been better if they had set out their views and we would urge Employment Tribunals to set out their analysis and reasoning on all the relevant issues in the case, not only those on which they determine it. It also follows from these observations that we consider that Employment Tribunals require to take particular care when pressing a party’s representative to make a concession, particularly where the representative concerned is a lay person.