What about changes due to modernisation and innovation?

The government consultation on TUPE carried out before enacting the 2006 TUPE Regulations suggested that TUPE was supposed to apply even though, after the transfer, the new contractor planned to carry out the work in a “novel or innovative” way, for example, replacing a manual process with a computerised one. This was to be the case even if some of the employees under the old contract lacked the skills to carry out the re-designed activities. The government believed that employees who transferred automatically to a new provider would benefit from better prospects for re-deployment or re-training through being part of a larger combined workforce. However, cases like OCS Group v Jones have pushed against this policy.

In its 2013 consultation document, the coalition government argued that requiring activities to be “fundamentally the same” will not exempt “new or innovative service offerings” from TUPE protection. In practice, everything will depend on the facts of each case and the approach of tribunal judges. The updated TUPE guidance says nothing about this issue.