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The Employment Appeal Tribunal has confirmed that events following a service provision change could be relevant in determining whether a client intended that activities would be carried out by a transferee in connection with a task of short term duration.

ICTS UK Limited provided security at the Trent Park campus of Middlesex University.  The campus was closed in 2012 and it became a vacant site. In July 2013 the site was purchased by a Malaysian company called AUCMS.  ICTS continued to provide security at the site.  On 16 October 2013 ICTS were informed that AUCMS would be appointing a new security company and they were told to prepare for a handover on 11 November 2013.  The new security company was First Call Secure Group Ltd.

The claimants who were employed by ICTS all lost their jobs on 11 November and brought claims against both ICTS and First Call.  At the date of the hearing in August 2104 no planning permission had been granted for any significant building on the site and none had taken place.

At first instance, the Employment Judge concluded that the activities that had been carried out by ICTS and First Call before and after 11 November were substantially the same and the client remained the same (AUCMS ) . TUPE would therefore apply unless immediately before the service provision change AUCMS intended the activities would, following the service provision change, be carried out by First Call in connection with a task of short term duration. 

At the hearing the Employment Judge said “I must determine the intention as at 11 November 2013 and I cannot look back at previous events that have occurred since then up to the date of the hearing”. 

He found that the intention of AUCMS was that the campus would remain unoccupied for a limited period of time and the security of the unoccupied site was therefore a short term operation. He found that AUCMS had an intention to either redevelop the site or to re-open the campus.

He found that there was no TUPE transfer and that the claimant’s claims did not transfer to First Call but remained with ICTS. 

The Employment Appeal Tribunal found that subsequent events could be relevant in deciding someone’s intention and in their judgment it was an error of law to ignore such events and fail to make findings of fact about them if they were potentially relevant.  A finding that no planning permission had been obtained and no building work had been carried out as at August 2014 may have impacted on the judge’s decision.

The case was remitted to the same Judge to reconsider his conclusions.