Re-conceptualising the Regulations: A Conceptual and Doctrinal Analysis of the UK TUPE 2006 Service Provision Change Regulations

Abstract

This research challenges the current conceptualisation of the Service Provision Change (SPC) Regulations, the additional UK-only definition of a ‘relevant transfer’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006). The SPC Regulations are currently conceptualised as highly welfarist regulations that aim to balance the inequality of bargaining power between employer and employee, to provide comprehensive levels of employment protection. The converse, principal policy goal at the time of enactment was to deregulate or liberalise legislation, to support the economic policy of increasing labour market flexibility. This research challenges the extent to which the SPC Regulations extend employment protection, with the aim of realising the Government's objective that TUPE ‘will strike the right balance between safeguarding employees’ existing rights and enabling businesses to adapt to changing circumstances.’ The hypothesis is that the SPC Regulations would be better understood if reconceptualised as legislation that supports the economic policy objective of increasing labour market flexibility. Using Davies and Freeland’s methodologies of regulation from their 2007 work, ‘Towards a Flexible Labour Market’ as a conceptual framework, Part One of the research challenges the extent to which the Regulations extend employment protection. Part Two examines the conceptual and doctrinal structure of the SPC Regulations and their application, to make the original contribution to knowledge that the Regulations are better understood when reconceptualised as supporting labour market flexibility. The thesis argues that, in contrast to the assurances given by Government on enactment, the current design of the Regulations does not support extended employment protection. Through the introduction of a third-party commissioning client into the employment relationship and an increase in managerial prerogative power within the employment relationship, the thesis argues that the design of the Regulations results in a power shift toward capital. Far from being an enhancement to employment protection, the thesis argues that the design of the SPC Regulations enables increased flexibility for employers and commissioners to restructure service provision operations in a manner not possible under the original EU transfer of undertakings legislation. By providing analysis of the commercial realities of the SPC transfer process, the thesis concludes that redress of power back toward employment protection requires both the theoretical reconceptualisation stated and a range of reforms to govern the complex relationships between the various actors involved in a service transfer. The thesis provides a 10-point reform plan for redressing the identified power shift, to regulate the commercial relationships involved in the transfer and provide increased certainty of application of the SPC Regulations. It is concluded that the combination of the theoretical reconceptualisation and practical reform recommendations will redress the imbalance of power generated by the original design of the SPC Regulations.

Date of Award	1 Aug 2019
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Norma Hird (Supervisor) & Elaine Dewhurst (Supervisor)