Relevant transfers

TUPE rights do not apply on every change of employer. Broadly speaking, the greater the similarity between 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”. There are two types of relevant transfer defined in regulation 3 of TUPE. These are:

• 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. It 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 (outsourcing), given to a different contractor (second generation outsourcing) or brought back in-house (insourcing).

There is considerable overlap between the two categories, so reps need a broad understanding of both.