Key points
- Even where no measures are envisaged on a TUPE transfer (and therefore no compulsory obligation to consult arises), an employer must nevertheless provide employee representatives with prescribed TUPE information in good time to allow those representatives to engage in an (albeit informal) consultation process with the employer.
What you should do
- Ensure that prescribed information is prepared and communicated in sufficient time for (voluntary) consultation to take place.
- Keep an eye on future case law for further guidance on what time frame will be regarded as sufficient in cases where there are no measures envisaged but voluntary consultation is deemed to be required.
- Consider whether any holidays or training periods specific to your industry could affect the timelines followed and, if necessary, extend the period of consultation and/or defer the transfer date where possible.
The EAT has ruled that, even where no measures are envisaged on a TUPE (Transfer of Undertakings (Protection of Employment)) transfer (and therefore no compulsory obligation to consult arises), an employer must nevertheless provide employee representatives with prescribed TUPE information in good time to allow those representatives to engage in an (albeit informal) consultation process with the employer.
Under TUPE 2006, an employer must provide prescribed information about a transfer to representatives “long enough before” the transfer to enable the employer to consult the representatives of any affected employees. The information must set out:
- The fact that the transfer is taking place, the date or proposed date of the transfer, and the reasons for it
- The legal, economic and social implications of the transfer for any affected employees
- The measures envisaged to be taken in relation to the transfer (for example, redundancies, changes to terms and conditions).
The statutory obligation to consult under TUPE only arises where measures are envisaged. The question raised in this case was how far in advance of the transfer the employer must provide the prescribed information when there is no statutory obligation to consult on a TUPE transfer.
In this case, the TUPE transfer took place on 3 September. No measures were envisaged and therefore the duty to consult under TUPE did not arise. Cable provided the union with the prescribed TUPE information on 15 August but between then and 3 September, the factory closed for its annual shutdown. That left only two working days between the date the information was provided and the date of the transfer.
The EAT said this was not long enough for meaningful (albeit voluntary) consultation on the information provided. The information could have been provided earlier or the transfer date could have been deferred slightly to allow that to happen. The EAT said that a responsible employer would not necessarily limit consultation to any measures being taken. This was in line with the industrial relations rationale behind TUPE.
Cable was ordered to pay protective awards of three weeks’ pay per affected employee.
This is an important development. The EAT did not prescribe how much time should be given for a “voluntary” consultation exercise, but we now know that two days will not be sufficient. One week or five working days would give the representatives a greater chance to consider the information and discuss the consequences with employees, although whether that will meet the EAT’s expectations remains to be seen.
