Service Provision Changes – Lessons for the Continent?

Abstract

In light of recent legislative reforms in the United Kingdom, this article discusses the application of the Transfer of Undertakings Regulation (TUPE) to outsourcing, re-tendering and insourcing under and beyond the Acquired Rights Directive 2001/23. The reflective British experience of creating and retaining a distinct notion of a ‘Service Provision Change’ is highly relevant for other EU Member States. Therefore, Service Provision Changes under TUPE Reg 3(1)(b) are contrasted with the notion of a ‘Directive Transfer’. An evaluation of the UK case law concludes that the notion of a Service Provision Change is not merely an extension of the Directive Transfer. Its statutory structure limits evasion conceivable under the Directive. When applied in a purposive manner, the concept of Service Provision Changes is good regulation beyond an EU Directive in that it improves legal certainty for all stakeholders and provides additional protection for employees working in labour-intensive services. Any Member State reconsidering its transfer regulation should take a close look at the British experience.