Enforcement
[ch 5: page 50]The penalty for failing to inform and/or consult under TUPE is a protective award in the employment tribunal (Regulation 15(7), TUPE). The claim deadline is very short — just three months (less one day) from the transfer date. The tribunal has a discretion to extend time (section 13(12), TUPE) but it is rarely exercised. Early legal advice from the union is essential. Trade unions regularly enforce very large protective awards on behalf of workers whose employers have failed to inform or consult under TUPE.
If there are trade union or employee representatives, the claim must be brought by those representatives (Regulation 15(1), TUPE). The only exceptions are where the claim concerns a failure to elect representatives or if there are no representatives.
Acas Early Conciliation applies to a claim for failure to inform and consult under TUPE.