Relevant transfers

TUPE rights do not apply to every change of employer. Broadly speaking, the greater the similarity of the activities carried out before and after a change of employer, the more likely TUPE is to apply.

For TUPE to apply, there must be a relevant transfer. Relevant transfers are defined in regulation 3 of TUPE. Since 2006, there are two types of “relevant transfer”:

• a business transfer: this is where a business or undertaking, or part of a business or undertaking, is transferred from one employer to another as a going concern. This can include cases where two companies combine to form a new business; and

• a service provision change: this is where an employer’s activities are either contracted out, given to a different contractor (also known as “second generation outsourcing”) or brought back in-house (also known as “insourcing”).

There is considerable overlap between the two categories and it is not unusual for a transfer to fall into both categories so reps need a broad understanding of both.