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ICTS UK Ltd v Mahdi and others UKEAT/0133/15; (2016) EMPLR 009
26 November 2015
Employment Appeal Tribunal
His Honour Judge Shanks
Events taking place after a change in contractor can be relevant in deciding whether TUPE applies.
ICTS provided security services to a vacant site owned by a University. The University sold the site to AUCMS. ICTS continued to provide security services for a short time but AUCMS then appointed another company, First Call. Security officers employed by ICTS claimed their employment transferred to First Call. The termination of the contract with ICTS and the appointment of First Call, they said, amounted to a service provision change under TUPE.
First Call argued that the services provided by First Call were different from of ICTS. ICTS provided security services for a vacant site, whereas First Call provided services to a site which was due to be redeveloped; and those security services were significantly different from each other.
The employment tribunal considered that, at least initially when the site remained vacant, the security services provided by First Call were the same as those provided by ICTS. However, the tribunal considered that AUCMS’s intention was that the site should remain unoccupied only for a short period of at most a year. The service provision change was therefore in respect of a task of short-term duration and therefore excluded from TUPE (reg 3(3)(a)(ii)). The tribunal disregarded evidence that, as at the date of the hearing (nearly a year after the change), no application for planning permission to redevelop the site had been made and no redevelopment work had started. The employment judge said he could not take that evidence into account, because it was the intentions of the parties at the time of the transaction that mattered - not what they subsequently did.
The EAT disagreed. There is no rule that tribunals cannot take subsequent events into account when determining the parties’ intentions. The fact that no development work had started nearly a year after the change clearly cast doubt on the reliability of the evidence about AUCMS’s intentions at the time it appointed First Call and should therefore have been taken into account.
The case was remitted to the tribunal to reconsider.