Relevant transfers


TUPE rights do not apply to every change of employer. Broadly speaking, the greater the similarity between 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, 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. In practice, with developing case law, the distinctions between the two categories are becoming increasingly artificial.