TUPE - Subsequent Events are Relevant When Considering Whether the 'Task of Short-Term Duration' Exception Applies
The Employment Appeal Tribunal (EAT) has held that subsequent events may be considered when deciding whether there has been a 'task of short-term duration' for the purposes of TUPE.
A service provision change (for example an outsourcing arrangement) will be excluded from TUPE protection if the client intends that the relevant activities will be carried out in connection with a 'task of short-term duration'.
In the case of ICTS UK Ltd v Mahdi and others, ICTS UK Ltd (ICTS) had a contract to provide security to Middlesex University at its Trent Park campus. After the campus was closed in 2012, ICTS continued to provide security for the vacant premises.
The site was purchased by a Malaysian University (AUCMS) in July 2013. ICTS offered AUCMS a new security contract whilst they continued to guard the premises. AUCMS however advised ICTS that it would be appointing First Call Secure Group Ltd (First Call) from 11 November 2013 to take over security during the redevelopment of the site. First Call refused to take on ICTS' employees.
Ten of the ICTS security guards argued that they should have TUPE-transferred to AUCMS.
An Employment Tribunal (ET) accepted First Call's argument that TUPE did not apply because it (First Call) had been appointed to complete a task of short term duration - namely providing security over an unoccupied site pending the start of refurbishment. Therefore there was no service provision change and no TUPE transfer.
EAT's Decision
In allowing ICTS's appeal, the EAT held that the tribunal had erred in ignoring events following 11 November 2013. In particular, the employment judge had failed to consider relevant facts, including that planning permission had not been granted for redevelopment and no building work had yet commenced at the time of the hearing. These facts raised doubt as to whether AUCMS genuinely intended that First Call's task would be of 'short-term duration'.
Best Practice
Where employers are intending to rely on the 'short-term duration' exception, care must be taken to clearly document the reasons at the time a new contractor is appointed. If subsequent events are inconsistent with that intention contractors and clients may wish to consider making a record of the reasons why and when those reasons arose.