The Developing Case Law on TUPE and Service Provision Change
本文分析了英国《企业转让（雇佣保护）条例》中服务提供变更与业务转让两种员工保护路径的判例法发展，指出两者并非互斥，对处理外包中的雇佣问题有参考价值。
Under the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006, 1 there are two different gateways to the protection of employees when their employer changes as a result of an outsourcing decision or, as the legislation puts it, a service provision change. The first is to be found in Regulation 3(1)(a), on the transfer of an undertaking or part of an undertaking (a ‘business transfer’), and the second is to be found in Regulation 3(1)(b), on a service provision change. The former is derived from the EU Acquired Rights Directive 2001/23, 2 and the latter from domestic law—it has no equivalent in the Acquired Rights Directive (ARD). 3 The concept of ‘service provision change’ in Regulation 3(1)(b) of TUPE is wider than the concept of the ‘transfer of an economic entity’ governing business transfers in the ARD and TUPE, Regulation 3(1)(a). It applies when there is a transfer of an activity alone. 4 However, as HHJ Richardson recently stated in the Employment Appeal Tribunal (EAT) decision in Aguebor v PCL Whitehall Security Group , 5 it is important to note that the two gateways to employment protection, respectively, on a business transfer and a service provision change, are not mutually exclusive. It remains open to the employer or the employee to rely upon the business transfer gateway, if, for technical reasons, such as we describe below, the service provision change rules do not apply, or upon the service provision change gateway, where something less than an economic entity (such as an activity alone) changes hands.