We are in the process of tendering a currently out-sourced service, and have reason to believe that the incumbent is manipulating the list of TUPE eligible staff (to exaggerate its size) in order to deter other bidders from successfully bidding. Is there any legal precedent for action in cases like this?

This is sometimes referred to as “employee dumping” and seems to be a common feature of second or subsequent generation outsourcing.

If you do not have a contractual obligation that you can pin on the outgoing supplier requiring it to provide accurate and up to date information about the transferring employees, then you could remind the outgoing supplier of its obligations under TUPE to provide accurate information to the transferee (new supplier) and the financial penalties if it fails to do so.

The incumbent should also be aware of the argument that employees who have been “dumped” into the transferred business do not transfer under TUPE on the basis that they are only “temporarily