RJ Heathman Ltd (t/a County Contractors) & Ors v Quadron Property Services Ltd & Ors

For the short-term-task exception in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must identify the relevant activities and the client’s intention immediately before the transfer. It must then decide whether the client intended the new contractor to perform those activities in connection with a single specific event or a task of short duration. This is principally a factual assessment. An uncertain interim arrangement for ongoing property-maintenance activities need not be a short-term task.

The date of a service provision change under regulation 3(1)(b)(ii) is determined objectively from the facts. The parties’ subjective intentions may form part of the factual matrix but are not determinative. A tribunal cannot reject documentary evidence on unsupported speculation.

QPSL, a property-maintenance contractor for Places for People Group Ltd, entered administration. The Employment Tribunal held that there was a service provision change to County on 17 November 2009. It found that County’s assumption of QPSL’s work was not connected with a single specific event or task of short duration, despite Places for People’s plan to establish an in-house maintenance department.

County appealed that conclusion. The Secretary of State cross-appealed against the finding that the transfer occurred after QPSL entered administration. The cross-appeal concerned whether the evidence objectively established that the work had already transferred to County on 16 November 2009, with consequential liability under Transfer of Undertakings (Protection of Employment) Regulations 2006.

1. Appeal dismissed; cross-appeal allowed. The Employment Tribunal correctly rejected County’s reliance on the exception in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

2. The required inquiry is directed to the client’s intentions immediately before the transfer. The tribunal must identify the activities, the client’s underlying task or function, and its intention concerning the new contractor’s performance of those activities. It must then decide whether that intended performance was in connection with a single specific event or a task of short duration.

3. The Employment Tribunal had made that inquiry. It did not add a requirement that the duration be fixed or certain. Its finding that the client did not know how long County would be required to undertake the ongoing maintenance activities entitled it to conclude that neither limb of the exception applied. That was a factual conclusion open to it on the evidence.

4. The date of a service provision change under regulation 3(1)(b)(ii) is objectively determined. The decisive question is whether the activities had ceased to be carried out by the outgoing contractor and were instead carried out by the subsequent contractor. The client’s wider intentions, including whether it had made a firm decision or regarded the arrangement as temporary, were relevant background but not determinative.

5. The Tribunal’s rejection of the spreadsheet evidence was perverse. The allegation that the data might have been altered was unsupported speculation and had no forensic basis. The evidence established an increase in work allocated to County from 16 November 2009. This was an exceptional case in which the fact was indisputable, so remittal was unnecessary. A finding that the transfer occurred on 16 November 2009 was substituted. The costs application was refused.

• Employment Appeal Tribunal: County’s appeal from the Employment Tribunal was dismissed. The Secretary of State’s cross-appeal was allowed and the finding as to the transfer date was substituted.
• Employment Tribunal, Bristol: Employment Judge Mulvaney held that a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 occurred on 17 November 2009.