By Reg 3(3), a pre-condition of a Service Provision Change under Reg 3(1)(b) is that the client ‘intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration‘. This case is concerned with how that ‘intention’ is proved. In particular whether events after the date of transfer are relevant to determine this issue.
ICTS provided security at a university campus. The campus was closed in 2012 but ICTS continued to provide security for the vacant site. AUCMS purchased the site in July 2013 with the intention of redeveloping it. Between July 2013 and November 2013 ICTS provided security at the request of AUCMS. With effect from 11 November 2013 AUCMS appointed another company, First Call, to provide security.
ICTS asserted that the employees engaged in the security of the site should transfer to First Call. First Call refused and said that they should not. First Call’s argument was essentially that: (i) whereas ICTS had been contracted to provide security for a university campus First Call were contracted to provide security for a construction site. (ii) That First Call’s contract was to provide security for 3 months and thereafter until completion of the refurbishment.
The ET held that the activities of ICTS and First Call were substantially the same before and after the 11 November 2013 and therefore subject to the question of AUCMS’s intention there would be a transfer. In determining the issue of intention the ET held that it could not look at events after the transfer to determine the position before the transfer. The EJ inferred that, as the site was going to be refurbished or that security would be required only until building contractors commenced work, it was AUCMS’s intention that the task would of a short term duration. As at the date of the hearing in September 2014 there was unchallenged evidence that no planning permission had been obtained and no building work had commenced.
ICTS appealed, inter alia, on the ground that the ET should have considered evidence of what occurred after the transfer,
On this ground EAT (HHJ Shanks) held that evidence of subsequent events can be taken into account. He stated that did not read HHJ Eady QC as saying anything different when she said in Horizon v Ndeze at  “…I consider that the Employment Judge erred in taking into account an irrelevant fact, i.e. what was happening at the time of the Employment Tribunal hearing. That was not the question. The relevant question was: what was the client’s intention at the date of the purported service provision change?”
HHJ Shanks put the matter in this way at :
“In deciding such a question of fact it is almost invariably necessary for an Employment Tribunal (like any other Tribunal) to draw an inference from all the relevant surrounding circumstances presented to it. Such circumstances can obviously include contemporaneous expressions of intent and actions by the relevant party or its agents; but they can also include what the party says or does not say after the relevant event, in particular in response to the forensic process; and in my judgment there is no reason why they cannot also include subsequent events (or non-events), provided of course that those events are capable of casting light on the intention of the relevant party at the relevant date, and that the fact-finder bears in mind that the ultimate issue to be decided is intention and not outcome. As Judge Richardson observes in his sift reasons, juries asked to make findings about a party’s intentions in criminal trials are directed along these lines all the time.”
Although at first blush it might appear that this case and Ndeze are something different on the important issue of intention under Reg 3(3). However, it is possible to read them consistently. HHJ Eadie QC in Ndeze was identifying, correctly, that what is happening at the date of the tribunal is irrelevant in the sense that just because a task has continued until the date of the Tribunal tells you nothing about the client’s intention at the date of transfer. However, what HHJ Shanks is essentially saying is that evidence after the date of transfer of what was has discussed or documented or recorded or done or not done may well cast light on the client’s true intention at the date of transfer.