On 5 September 2013, the government published its response to the consultation on the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and in that response set out an intended package of amendments to TUPE. From an outsourcing perspective, the key government proposal on which a response was sought through the consultation was to repeal the test providing for transfer following a service provision change (SPC), which test extends beyond the requirements of the Acquired Rights Directive implemented by TUPE. In line with the responses received, the government has confirmed that it will not repeal the SPC provisions in TUPE. It will, however, amend TUPE to reflect the approach on SPC set out in case law, namely that for there to be a SPC, the activities carried on after the change in service provision must be "fundamentally or essentially the same" as those carried on before it. The upshot of this is that differences in the relevant service after a change in provider, compared to the service before that change, could mean that the change is not within the SPC provisions; the greater the difference, the less likely that the change falls within the SPC provisions. The government expressed its intention to lay the proposed amendments to TUPE before Parliament in December 2013, with the changes likely to come into force in January 2014.
Click here for a copy of the government response.