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Update 53 - The Employment Appeal Tribunal supports "common sense and pragmatic approach".

Since the new TUPE regulations came into force in 2006, it has been widely anticipated that in the cases of contracting-out, contracting-in or a change of contractor, it will be much harder for the incoming employer to argue that TUPE does not apply.

In the recent case of Metropolitan Resources v Martin Cambridge the incoming employer tried to argue that the requirement for retention of identity post-transfer should be implied into the ‘service provision change’ test. The Employment Appeal Tribunal firmly rejected this argument.

The Employment Appeal Tribunal held that a ‘common sense and pragmatic approach’ is required to determine whether there is a relevant transfer. The fundamental question is whether the activities pre and post transfer are ‘essentially the same’.

You can read the full text of the Judgment by clicking here

Update 93 - Expert Comments on ‘new’ TUPE (Transfer of Undertakings (Protection of Employment)). A relevant transfer takes place either if the old test is met or if the new ‘service provision change’ test is met. Under the ‘service provision change’ test, there is no explicit requirement for anything to retain its identity post-transfer. All that is required is a change of provider of a service and an organised grouping of workers whose principal purpose pre-transfer was carrying out the service now being transferred.