Statutory obligation to consult collectively

If an employer envisages that it, or the new owner of the business after the transfer, will make changes to contract terms, working conditions or practices in connection with the transfer, there is a statutory duty to consult collectively under Regulation 13 of the Transfer of Undertaking Protection of Employment Regulations. Failure to consult collectively will result in liability for a protective award.

The duty to consult arises whenever an employer envisages that it will take measures in relation to the affected employees. “Measures” is not defined in the regulations but it is a very wide concept, including “any action, step or arrangement…deliberately done…over and above what necessarily happens as a result of the transfer itself” (Todd v Strain and others [2011] UKEATS/0057/10/BI). For example, changing job functions, making redundancies and relocating staff are all “measures”, triggering the duty to consult. Anything that is not an inevitable result of the transfer is a measure.

For more information see LRD’s annual publication Law at Work www.lrdpublications.org.uk/publications.php?pub=BK&iss=1664