Q&As

A contracts with an individual (B) to provide certain services (not as an employee) to A. A wishes to terminate this arrangement with B, and bring in a (US) company (C) to provide the services instead. Does this constitute a service provision change? If so, how does B comply with his obligations (as transferor) under TUPE 2006 if A and C are failing to provide details of the transfer? Is A required to provide to B relevant information about the transfer?

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Published on LexisPSL on 11/06/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • A contracts with an individual (B) to provide certain services (not as an employee) to A. A wishes to terminate this arrangement with B, and bring in a (US) company (C) to provide the services instead. Does this constitute a service provision change? If so, how does B comply with his obligations (as transferor) under TUPE 2006 if A and C are failing to provide details of the transfer? Is A required to provide to B relevant information about the transfer?
  • Is there a service provision change?
  • Meeting the transferor’s obligations as contractor on a service provision change where the client and subsequent contractor fails to provide relevant information

Is there a service provision change?

A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) may involve any one of three possibilities:

  1. outsourcing: where activities cease to be carried out by a person ('a client') on his own behalf and are carried out instead by another person on the client's behalf ('a contractor')

  2. change of contractor: where activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person ('a subsequent contractor') on the client's behalf, or

  3. insourcing: where activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf

In addition to the need for one of those three situations to apply, the following conditions must be satisfied:

  1. (immediately before transfer) there must be an organised grouping of employees (which may be a single employee) situated in Great Britain

  2. (immediately before transfer) the principal purpose of the organised grouping must be the carrying out of the activities on behalf of the client

  3. (immediately before transfer)

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