The NHS has always been within the scope of the Transfer of Undertakings (Protection of Employment) Regulations (Tupe). Whether or not a proposed contract with a commercial contractor constitutes a transfer of undertaking needs to be considered on a case-by-case basis and, where there is doubt, the matter has to be referred for legal advice.
The Department of Health is planning to issue guidelines on all stages of market testing and these should assist managers in the field to decide when Tupe provisions apply. Meanwhile, the market testing programme is continuing.
Under-Secretary of State
Department of Health