TUPE—service provision changes

The following Employment practice note provides comprehensive and up to date legal information covering:

  • TUPE—service provision changes
  • Service provision changes defined
  • Regulation 3(3) additional conditions
  • No ‘economic entity’ analysis required
  • No SPC where no new service provider can be identified
  • Identifying the client
  • No SPC where identity of client changes
  • Activities must continue to be carried out on the client’s behalf
  • Where the client is the administrator of a company
  • Where client is more than one legal entity
  • More...

TUPE—service provision changes

This Practice Note examines service provision changes (SPCs) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, reg 3(1)(b) occurring in the context of outsourcing, insourcing or a change of contractor or service provider.

This Practice Note sets out the position for cases where the relevant transfer TUPE 2006 takes place on or after 31 January 2014. For information on the position where the TUPE transfer took place before 31 January 2014, see Practice Note: TUPE—the pre-January 2014 position [Archived]—Service provision changes.

A change of service provider may amount to a 'service provision change' (also known as an ‘SPC’) within the meaning of TUPE 2006 whether or not it is also a 'business transfer'. For further information on business transfers, see Practice Note: TUPE—business transfers.

Unlike the remainder of TUPE 2006, which implements Directive 2001/23/EC, the Acquired Rights Directive (ARD), the SPC provisions in TUPE 2006 do not derive from European legislation. Rather they were included in TUPE 2006 with a view to codifying European case law and case law under the former UK legislation (TUPE 1981), where certain changes in contractor had been held to be ‘business transfers’. It is therefore important to note that:

  1. European case law is not relevant to interpreting the SPC provisions of TUPE 2006, and

  2. a transfer may be both a business transfer and a service

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