In ICTS UK Ltd -v- Mahdi and others 2015, the EAT confirmed that subsequent behaviour of the client may be relevant when considering the intention of the client at the time of the transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Regulation 3(3)(a)(ii) TUPE sets out that a service provision change will not be a relevant transfer if the client intends that the activities will, following the service provision change, be carried out by the transferee in connection with a single specific event or task of short-term duration.
ICTS provided security at a campus of Middlesex University, which was sold to AUCMS (the client). AUCMS informed ICTS that its services were no longer required, and engaged a new firm of security guards, First Call. The ICTS security guards argued that there had been a TUPE transfer to First Call, but First Call contended that they had been engaged to provide security to the building site during redevelopment, an engagement of short-term duration to which TUPE would not apply, rather than to the campus generally on an ongoing basis.
The EAT held that in determining the client’s intention at the time of the transfer, the employment judge had expressly declined to take into account events subsequent to the service provision change, which were potentially relevant. For instance, planning permission had not been granted, and building works had not been carried out. Had the employment judge considered this, his conclusions about the client’s statement of intent (evidenced in a contemporaneous letter) might have been different. Further the EAT held that determining intention is a question of fact for the Tribunal, and subsequent statements or actions may be capable of casting light on the intention of the relevant party at the relevant date. The case was remitted to the Tribunal.