Under TUPE, a service provision change will only amount to a TUPE transfer if the client intends that after the transfer the activities will continue to be carried out "other than in connection with a single specific event or task of short-term duration". In ICTS UK Limited v Mahdi the EAT had to decide what factors the tribunal could take into account in deciding what the client's intentions were.
ICTS had a long-term contract with Middlesex University to provide security at a campus site. In Summer 2012 the University closed the campus and it became a vacant site. ICTS continued to provide security at the site. In July 2013 the site was purchased by AUCMS. It entered into a new contract with ICTS but then appointed a new security company, First Call, from 11 November 2013. The tribunal decided that this did not amount to a TUPE transfer because the client's intention was that the campus would only remain unoccupied for a limited period of time before redevelopment, probably no more than a year, and the security of the unoccupied site was therefore "a short-term operation".
In reaching that decision the Employment Judge expressly said that he could not take account of things that had happened after the date of the transfer in deciding whether the client intended the security activities to be of short-term duration. In fact, by the time of the hearing nearly a year later, no planning permission had been granted for any redevelopment of the site and no building work had taken place.
The EAT found that the Tribunal had taken the wrong approach in refusing to take events after the date of the transfer into account in deciding what the client's intentions were. Evidence as to intention can include subsequent events (or non-events), provided that they are capable of casting light on the intention of the party at the relevant date. Here, findings that no planning permission had been obtained and no building work carried out as at August 2014 may have raised questions as to whether it could genuinely have been intended that the task would be of short-term duration and as to whether that could have been an intention rather than a "hope and wish". Existing authorities make it clear that a "hope and a wish" cannot amount to an "intention".