According to a recent Employment Appeal Tribunal (EAT) decision, the effect of TUPE cannot be circumvented by using secondment arrangements. The effect of these arrangements in a TUPE context was last looked at two years ago by the House of Lords in the Celtec case. That case confirmed that a TUPE transfer could not happen in stages, so seconded employees were the subject of a transfer at the point the management of the service they were employed to provide moved from the public sector to a quango, even though they remained on the civil service payroll for several years afterwards.

The EAT has now looked at this issue again, in the context of outsourcing the BBC's occupational health service. Mrs McClean did not want to work for the new provider, Capita Health Solutions, so she reached agreement with the BBC that she would opt out of the transfer and be seconded for six weeks to Capita after the transfer to help with the handover arrangements.

The difference between her and the seconded employees in Celtec was that she had exercised her right to opt out of the transfer but they had not. The EAT said that this did not make any difference: it was not possible to opt out of a TUPE transfer in this way. The correct interpretation of the arrangements was that Mrs McClean had been transferred to Capita but that she had only agreed to work for them for a limited period.

For the full decision click here.