Introduction to TUPE and what constitutes a relevant transfer

The Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended in 2014, sit at the heart of this video, which addresses Assessment Criterion 3.3 of Unit 5OS01 Specialist Employment Law. The video covers the origins of TUPE as the UK implementation of the European Acquired Rights Directive, its continued operation as retained EU law following Brexit, and its three core statutory purposes relating to automatic transfer, preservation of terms and conditions, and protection against transfer-related dismissal. The terminology of transferor, transferee and affected employees is also examined, including how the definition of affected employees extends beyond those who physically move to the new employer.

A substantial portion of the video is devoted to what constitutes a relevant transfer under the Regulations. Two distinct categories are examined: business transfers, involving the transfer of an economic entity that retains its identity, and service provision changes, which were introduced by the 2006 Regulations and cover outsourcing, re-tendering between contractors and insourcing. For business transfers, the video examines the multi-factor approach courts apply, touching on tangible assets, intangible assets such as goodwill, workforce movement and the degree of similarity in activities before and after the transfer. For service provision changes, the concept of an organised grouping of employees and the requirement that carrying out the relevant activities constitutes their principal purpose are both addressed.

The video also identifies the circumstances in which TUPE does not apply, covering share sales and asset-only sales as specific exclusions, and explains why the nature of the activities before and after a change is relevant to whether the Regulations are engaged. A catering outsourcing scenario is used as a concrete illustration of how the conditions for a service provision change are assessed in practice, anchoring the statutory tests to a recognisable workplace situation of the kind HR professionals working on outsourcing or re-tendering arrangements are likely to encounter.