Posted by Gemma Ospedale, Partner
Service provision changes under TUPE do not require all activities to transfer
In Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and others the EAT has held that there is no requirement for the whole of a service to transfer in order to trigger the service provision change provisions of TUPE. It is possible for there to be a TUPE transfer where only part of the service being carried out by the transferor is subsequently performed by the transferee. The fact that TUPE makes express provision for a business transfer where there is only part of an undertaking, service or activity transferring, should not be interpreted to mean that the lack of such wording relating to service provision changes means that part of a service or activity cannot transfer. The service provision change is a domestic provision which does not depend on a finding that there is a discrete economic entity with functional autonomy. Therefore a different approach should be adopted to its interpretation. Case law has evolved to require a straightforward and common sense reading of the service provision change and there is nothing in TUPE that expressly requires the activities to constitute all of those carried out by the outgoing contractor.