Baxter and others v Marks & Spencer and others

Baxter and others v Marks & Spencer and others
Employment Appeal Tribunal

Duty to inform and consult employee representatives about a TUPE transfer

Marks and Spencer (M&S) decided to outsource its loss prevention department. As a result, M&S recognised that TUPE applied and 200 employees were affected. M&S initiated the consultation process and provided employees with the necessary information. The first scheduled election was aborted and a subsequent election process appointed the necessary employee representatives. A number of employees brought claims alleging, among other claims, a breach of the duty to inform and consult with them.

The tribunal found that while M&S had complied with its duty to inform and consult with employees over the TUPE transfer, information had not been given to the elected employee representatives in accordance with the TUPE regulations as it had been provided before the elections.

However, as this was a technical breach, and the employees had suffered no detriment, no compensation would be awarded. The employees appealed.

Supporting issues

At the EAT, the employees relied on a number of issues to support their argument that M&S had failed to comply with its duty to inform and consult with employees. These were: that the shift in emphasis on the investigation of external theft (rather than internal theft) after the transfer was a “measure” for the purposes of consultation; that the provision of information too early was not a minor breach; that there was a failure to consult over job roles; that alterations had been made to the proposals; and that M&S had not consulted for long enough.

The EAT rejected all the points raised by the employees. In respect of the decision not to award compensation for a minor breach, the EAT stated that a tribunal has a power, not an obligation, to award compensation. Therefore, it had a discretion whether or not to award compensation at all.

In relation to the failure to consult about changes to the job roles, the EAT found that this was not a measure connected to the transfer but an administrative consequence of the transfer. As for the other points, the EAT held that they had no reasonable prospect of success and dismissed the appeal.

Key points

• The EAT upheld the tribunal’s practical approach to the issue of whether M&S had complied with its duty to inform and consult with employees and awarded no compensation where there had only been a technical breach of this duty.
  
• The EAT found that there is no minimum time period for TUPE consultation (which contrasts with the position under collective consultation where there are 90/30 day minimum periods). The key issue is what happens during the consultation itself.
  
• In looking at whether a change to working practices amounts to a measure, the EAT differentiated between a ‘measure’ (ie a matter of principle) and changes which were simply administrative changes, changes which would have occurred in any event or changes of emphasis. It is only ‘measures’ which must form part of the consultation process.

What you should do

• During any consultation period ensure information previously sent to employees is re-issued to elected employee representatives to comply with obligations under TUPE.
  
• Carefully consider the measures which will be taken on any transfer. Are they matters of principle or simply administrative changes, changes which would occur in any event or changes of emphasis? In practice, it may be difficult to identify the difference and, if in doubt, include the particular issue in consultations.