TUPE And Service Provision Change: Fragmentation

A service provision change TUPE transfer occurs when activities carried out by one provider are taken over by a new provider as long as there was, immediately before the change, an organised grouping of employees, the principal purpose of which was to carry out the relevant activities for the client.

When one provider is replaced by another provider the position is quite simple. But the position can be more complex where a single provider is replaced by multiple providers. In principle, TUPE may still apply, but not where, following the change, the services are fragmented and randomly allocated among new providers.

This was the subject matter of the recent EAT decision in Carewatch Care Services Ltd v Henry.