Changes to TUPE and Service Provision - Expert Comments

David Reid
8th Jul 2009

Under ‘new’ TUPE, 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.

Employment law tribunal cases

Under ‘new’ TUPE, 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.

Under ‘old’ TUPE (pre-2006), the decision as to whether a TUPE transfer had taken place would depend upon whether there was an identifiable economic entity which retained its identity after the transfer. This meant that in contracting-out, contracting-in or change of contractor cases, it was often possible under the old law for the incoming employer to avoid the application of TUPE by performing the services in a different way.

 

Under ‘new’ TUPE, 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.

 

Judgement in the recent case of Metropolitan Resources v Martin Cambridge clarifies this are of employment law.

It now seems reasonably clear that where the question of how a service is to be delivered following a contracting-in, a contracting-out or a change of contractor is largely irrelevant to the question of whether TUPE applies.

 

Share this with