John McMullen casts an eye over the court’s approach to team participation & service provision change under TUPE
In broad terms (and subject to some express exclusions), whether there is a relevant transfer by way of service provision change (SPC) under reg 3(1)(b) of the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 depends on whether “activities” on behalf of a client have ceased to be carried out by one person (either a client on its own behalf, or a contractor) and are, instead, carried out by another person on that client’s behalf.
A pre-condition, however, is that, immediately before the SPC, there must have been an organised grouping of employees, the principal purpose of which was to carry out those activities on behalf of the client (reg 3(3)(a)(i)). This article examines the rigour with which this provision is required to be examined. It is also to be stressed that it is not enough for the employee to point out that the organised grouping exists before the SPC. The employee must be part of that team; ie, by virtue of reg 4(1)
