All change please

Since the implementation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE), service provision changes have been all the rage. They are very much in favour with the current government, which appears to see encouraging the transfer of services in and out of the public sector as its raison d’être. The reality is that after a transfer, the same employees end up providing the same services to the same client and the new contractor is saddled with the employees’ original contractual terms, unless they manage to show that the contractual changes are either unrelated to the transfer or are for economic, technical or organisational (ETO) reasons entailing changes in the workforce. Further, TUPE effectively arms employees by:
 

• allowing an employee to treat his contract of employment as having been terminated, where the relevant transfer involves a substantial change in working conditions to his material detriment;
• expressly permitting an employee to accept a repudiatory breach of contract by his employer and terminate