Letter: No moratorium on NHS market testing

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The Independent Online
Sir: I would like to correct the false impression contained in your report of 19 January concerning private contractors and the National Health Service, which indicated that the Department of Health had ordered a general moratorium on the process of market testing in the NHS. No such moratorium has been


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.

Yours sincerely,


Under-Secretary of State

for Health

Department of Health

London, SW1

20 January