The recent Court of Appeal case of McCarrick v Hunter is important for two reasons. Firstly it confirmed that in order for there to be a service provision change under TUPE the client for whom the services are carried out must remain the same. Secondly, and perhaps more significantly, the judgment gave a clear signal that a straightforward and common sense application of the relevant statutory words is all that is required and at least certain parts of TUPE do not require a purposive interpretation.
In his succinct judgment Lord Justice Elias examined the service provision change definition and stated that he could see no basis for giving the language of regulation 3(1)(b) an artificial or expanded meaning. He acknowledged that as this part of TUPE is purely a piece of domestic legislation and there are no underlying EU provisions against which it has to be measured there is no necessity for a purposive construction. He further stated that the concept of a change of service provision is not complex and there is no reason to think that the language does not accurately define the range of situations which the draftsman intended to cover. Lord Justice Elias agreed with the comments made earlier this year in the EAT in Eddie Stobart Ltd v Moreman  ICR 919 where Underhill P stated that there is no rule that the natural meaning of TUPE must be stretched in order to achieve transfer in as many situations as possible.
These observations will be welcomed by all those who grapple with service provision changes. However Lord Justice Elias did accept that there may be aspects of TUPE where a purposive interpretation is appropriate with respect to the service transfer provisions and where the courts should approach matters as they would similar issues relating to traditional transfers of undertakings. For example, it may be necessary not to be too pedantic with respect to the question whether the activities carried on before and after the transfer are sufficiently similar to amount to the same service; or to take a broad approach to the question whether an employee is employed in the service which is the subject of the transfer.
The general effectiveness of TUPE is of course under review at present. The Government’s response to the TUPE call for evidence revealed a general uncertainty about service provision changes and the Government has confirmed that it will consult on whether the service provision changes should be retained or repealed altogether. In the meantime, however, it seems that employers can rely to some extent on the greater certainty provided by this case on the interpretation of the service provision change elements of TUPE. The extent to which the decision is welcomed by any employer will clearly depend on whether it is the transferor or transferee in any such TUPE scenario.