TUPE consultation
[ch 4: page 54]There are also separate information and consultation obligations whenever the identity of the employer changes as a result of a transfer covered by the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE). This could include a business sale, merger or reorganisation, or the outsourcing, in-sourcing, or re-tender of a service contract (second-generation outsourcing).
TUPE information and consultation obligations are triggered even if just one employee is transferred. The duty to inform arises on every transfer but the duty to consult only arises if an employer envisages it will take measures affecting the employees or knows the incoming employer will take measures. A “measure” is any deliberate step or arrangement that is not an inevitable consequence of the transfer. For example, a proposal to reorganise shifts or job roles, to seek to change terms and conditions, or to cut pension contributions after a TUPE transfer would all be “measures” triggering the statutory duty to consult. Where there is a recognised union, consultation must be with the union. An employer that fails to inform and/or consult can be made to pay a protective award, calculated in the same way as for failure to consult over collective redundancies (see above).
There are strict claim deadlines, so advice should be sought from union solicitors.