TUPE and the obligations to inform and consult

The outgoing and incoming employers must provide certain information about the transfer. Under TUPE the information must be given to recognised trade union representatives or if none exist, to elected employee representatives of the employees who may be affected by the transfer. 

The following is a list of the information that must be given to the representatives:  

• The fact of the transfer and details of the date (or proposed date) of the transfer and the reasons for it. 
• Details of any legal, economic and social implications of the transfer for the affected employees; this will include for example details about which employment terms will transfer. 
• Details of any actions, steps or arrangements (known as ‘measures’) which the incoming or outgoing employers may take or put in place in connection with the transfer. If no measures are anticipated this must be stated. Measures includes possible redundancies or changes to the place of work or staffing structures. 
• If employed by the outgoing employer, the representatives must be given information about any measures proposed by the incoming employer. If there are none this must be stated. 
• Details about any agency workers used by the employer, including details of the number of agency workers, the parts where agency workers are working and the type of work agency workers are carrying out. 

It is not uncommon for the information to be given directly to the affected employees if there are only a small number. Strictly this does not comply with the obligations under TUPE and may entitle you to bring a claim.

You will be affected by the transfer if your employment is transferring because of it. You may also be affected if the measures proposed impact on you in some way, even if your employment is not being transferred.

The duty to consult with representatives does not always arise. It will only arise if either the outgoing or incoming employer anticipate taking ‘measures’. 

Consultation should be carried out: 

• by the outgoing or incoming employer with the representatives of their employees; and 
• with a view to reaching agreement about the measures proposed.

When must the information be given? 

The information must be given to the representatives long enough before the transfer so that consultation can take place about any measures which are proposed. 

If no measures are proposed and consultation is not needed the information can be given much closer to the date of the transfer and possibly even on the day! 

Claims for the failure to inform and consult 

If you are an affected employee and your employer does not inform or consult with the appropriate representatives (or yourself) before the transfer takes place, it may be possible to claim compensation of up to 13 weeks’ pay. 

Usually the claim must be brought by the relevant representatives within three months (less one day) of the date of the transfer. 

Your employer may be able to avoid liability for failure to inform and consult if there were special circumstances making it reasonably impractical to comply with its duties. The circumstances in which this defence applies are very limited though.