Transfers - the key developments

• When deciding whether there has been a service provision change under regulation 3(1)(b) of TUPE, the first question is whether the “activities” carried out by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor.

• The test whether a change in working conditions under regulation 4(9) of TUPE is substantial and to the employee’s material detriment is not entirely an objective test; the impact of the change must be looked at from the employee’s point of view and then it must be assessed whether his/her view is reasonable (case 1).

• Minor differences in the nature or mode of performance of tasks carried out before and after a transfer do not prevent there being a service provision change (cases 2 and 4).

• Employers must pass on to the union their genuine and considered view about the legal implications of a transfer under regulation 13(2)(b) of the TUPE Regulations, but they are not responsible for warranting the legal accuracy of their view (case 3).

Case details are available at www.employmentappeals.gov.uk (EAT) and www.bailii.org (Court of Appeal).

Call 020 8686 9141 for details of the journal Industrial Relations Law Reports (IRLR).