New Transfer of Undertakings (Protection of Employment) Regulations (TUPE 2006) were made on 7th February 2006 and came into force on 6th April 2006 (see notes at Transfer of business or undertaking/2006 regulations ). They revoke and replace the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794 (see Transfer of business or undertaking/2006 regulations ).

The TUPE regulations apply whenever there is a "relevant transfer". One of the main changes between the previous 1981 TUPE regulations and the new 2006 regulations is in the definition of "relevant transfer" (TUPE regulations 2006 (SI 2006/246) reg 3). The previous definition of a "relevant transfer" was simply the "transfer from one person to another of an undertaking situated immediately before the transfer in the United Kingdom or part of one which is so situated" (TUPE regs 1981, reg 3(1)). The 2006 definition is more complicated.

The first part of the new definition is essentially the same as the old definition quoted above although the wording is expanded to give greater clarity. However a second, new, part has been added to the definition. This new part, essentially codifying case law established under the 1981 TUPE regulations, specifies that a relevant transfer includes a "service provision change" (TUPE regulations 2006 (SI 2006/246) reg 3(1)(b)). This new part appears to be an example of UK regulations "gold-plating" EU law (ie going further than EU law requires).

The simplest example of a "service provision change" would be outsourcing by an employer of services provided by that employer. An example would be where a local education authority outsources to a private company the provision of school meals which it previously provided using its own employees. "Service provision changes" also include in-sourcing (eg where a local education authority takes in-house provision of school meals previously provided by a private company) and changes of contractor (eg where a local education authority moves the contract for providing school meals from one private company to another private company).

It can be difficult to be sure in any particular case whether there is a relevant transfer within the meaning of the TUPE regulations. Two separate but related questions have to be considered, normally in this order - first was there an identifiable economic entity which counts as an undertaking for the purpose of the regulations?"; the second question is "was there a relevant transfer of any such entity?" (see Whitewater Leisure Management Ltd v Barnes & ors 2000 IRLR 456, EAT). Aspect of the first question are considered under the headings Transfer of business or undertaking/what is an ''undertaking''? ).