2. What is the difference between a Service Provision Change and an initial outsource under TUPE?

Whilst it may sound like the opening for the worst joke ever, it is a question that the Employment Appeals Tribunal (“EAT”) has recently considered in its first consideration of a case concerning service provision changes under the TUPE Regulations. The answer appears to be “very little”.

Some of you may recall that in 2006, the original TUPE Regulations were expanded to expressly cover situations where service users changed suppliers, brought services back in-house or outsourced services in the first place.

The EAT's approach in the case - which (briefly) considered the change of a service provider providing services to a centre providing accommodation for asylum seekers which were then undertaken from a new location - was a purposive one. The EAT rejected the argument that the change in location from where the services were provided was a sufficient difference for the TUPE Regulations not to apply.

The outcome and implications of the case appear to be that if the services provided before the change of service provider are basically the same as those after the change of service provider, then it is within the right of the Employment Tribunal to find that there is a TUPE transfer, notwithstanding that there may be minor differences in the “before and after” provision. The answer to the question as to the similarity of the services “will be one of fact and degree, to be assessed by the Tribunal on the evidence in the individual case before it.”