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Obligations to inform under TUPE

Posted on 10th December 2009
Case law

The Court of Appeal has decided that the obligation to inform under TUPE requires the employer to provide information that they genuinely believe to be correct even if it proves to be wrong.

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Simon Quantrill Simon
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Royal Mail Group Limited v Communication Workers Union [2009]

Background

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (or TUPE) requires employers to provide certain information to employee representatives.

In this case the Royal Mail believed that no employees would transfer when a number of post offices were taken over by WH Smith. The Royal Mail provided the information required under TUPE on this basis. The Royal Mail's belief was found to be wrong and some employees did in fact transfer.

The decision

The Court of Appeal held that the Royal Mail had not failed in their obligations to provide the required information as they had given information which they genuinely believed to be correct.

In practice

This is a welcome decision for employers, but when is an employer's belief genuine? The decision hints that an employer who "has taken no legal advice whatsoever and has not properly applied its mind to the issue . . . would be highly material evidence before an [employment tribunal] as to whether the employer had a 'genuine belief' . . ." in the information provided. At the very least it seems that some documentary evidence will be required that the employer has considered the points and information it should provide, perhaps in conjunction with legal advice. 

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