Liability for failure to inform and/or consult
[ch 5: pages 50-51]The duty to inform or consult before the transfer is owed by each employer to its own workforce (UCATT v Glasgow City Council [2008] UKEAT/7/08). However, where a transferor fails to consult its own workforce, liability for that failure is shared jointly by the transferor and the transferee(Regulation 15(8) and (9). Transferring employees can choose whether to claim against the transferor or the transferee and often bring the claim against both organisations. These rules are particularly helpful where there are doubts over the transferor’s solvency.
A transferee is solely liable for a transferor’s failure to inform transferring employees if that failure results from the transferee not having given the transferor the information needed to inform employees properly (Regulation 15(9), TUPE).
The transferee is also solely responsible for any protective award under TULCRA for inadequate “pre-transfer collective consultation” over proposed redundancies (see page 48). This is regardless of whether the inadequate consultation results from non-cooperation by the transferor.