Chapter 5
Employer defence
[ch 5: page 51]Under Regulation 15(2), TUPE, an employer can reduce the size of a protective award (or sometimes even escape liability altogether) if they can establish “special circumstances” that made it “not reasonably practicable” to consult, as long as they show that they did everything that was reasonably practicable to consult given those circumstances.
Tribunals interpret this defence narrowly. “Special circumstances” must be something unforeseen or unexpected, out of the normal run of commercial or financial events.