Decision: When considering whether a service provision change has taken place for the purposes of TUPE, events occurring after the alleged transfer date may be taken into account. Under TUPE, a service provision change may arise where a client decides to outsource its services, reassign them or bring them back in-house. However, an exception applies under TUPE where those services are intended to be tasks of ‘short-term duration’. This case involved a change in provision of security services, supposedly on an interim basis pending redevelopment of a university campus. The EAT confirmed that it was necessary to consider the client’s intention for the services at the time of the transfer but it may also be important to consider subsequent events. The EAT held that the ET could have considered the lack of planning permission and failure to start work at the site as being potentially relevant to establishing whether the client intended the services to be of a short-term duration. The case was remitted to the ET for a re-hearing.

Impact: If a client takes steps after a purported service provision change which indicate that it was unlikely that the relevant task was intended to be of short-term duration, this should now arguably be subject to consideration by the ET. Employers engaged in potential TUPE transactions should therefore ideally have documentary evidence if they plan to rely on the short-term duration exception and ensure that they do not act in a contradictory manner after the purported service provision change. If events do change, and this impacts on the parties’ intentions, it would be wise to ensure there is contemporaneous documentation to explain any change in approach.

ICTS UK Limited v Mahdi & Ors UKEAT/0133/15/BA