TUPE will only apply to a service provision change where the activities remain fundamentally or essentially the same post-transfer. The EAT has refused to interfere with a tribunal's finding that a canteen service including hot meals prepared by chefs was wholly different from the service selling pre-prepared sandwiches that replaced it. The change was more than one of menu or style of food. TUPE therefore did not apply.

Such cases will turn on the subjective assessment of the individual tribunal as to what is a material difference, and will be difficult to appeal if the tribunal has asked itself the right questions. (OCS Group v Jones, EAT)