What about changes to the quantity rather than the type of activities?

In principle, there should still be a service provision change where the type of activity being carried out pre- and post-transfer is the same, even though there is less of it. Any other conclusion invites service providers to avoid TUPE by deliberately winding down their service in the months leading up to the transfer date. However, there are conflicting tribunal decisions. In Department of Education v Huke [2012] UKEAT 0080/12/1710, the EAT suggested that a change in the quantity of work could be relevant to deciding whether a service provision change has taken place. In that case, work was gradually wound down, until by the transfer date, Huke was the only person assigned to the contract, with “very little work to do”. The EAT said a significant decline in work volume can result in TUPE not applying to the transfer.

A better decision is London Borough of Islington v Bannon [2012] UKEAT00221/12/2509. In this case, the EAT confirmed that, just because a lack of resources meant that the Council was providing a much reduced service before a transfer, this did not change the essential character of the service. There was still a service provision change.