Slipping Through The TUPE Net

This article was first published in the Procurement and Outsourcing Journal, March/April 2012.

In this article, I shall be considering whether recent cases on the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE Regulations") are limiting the application of the legislation in an outsourcing scenario.

Before 2006, the application of the 1981 TUPE Regulations to situations in which services were outsourced focused on a number of evolving and often opaque legal tests that were based on questions such as whether the services were labour-intensive, whether assets or employees were taken on by the transferee and whether the same assets were used in the services before and after the transfer. The inclusion in the 2006 TUPE Regulations of a definition of service provision change was designed to clear away the obscurity and to a large extent it has done so. However, the language of the definition has made employment tribunals