Enforcing the obligation to inform and consult under TUPE

If the employer fails to inform or consult reps (or individual employees if there is no rep) a complaint can be made to the employment tribunal. This must be made within three months of the transfer date. As usual, there is a discretion to extend time, which is rarely exercised.

The tribunal can make an award of up to 13 weeks’ pay. According to the EAT, this should be worked out in the same way as for a protective award in cases of redundancy. In particular, it should reflect the seriousness of the employer’s failure and the maximum amount should only be reduced if there is mitigation (Sweetin v Coral Racing ([2006] IRLR 252)). A “week’s pay” for the purposes of a protective award under TUPE is “uncapped”. In other words, the award is of an actual week’s pay (Zaman & others v (1) Kozee Sleep Products Limited (2) Dorlux Beds (UK) Ltd [2010] UKEAT 0312/10).

Under the TUPE regulations, the transferor and the transferee are jointly and severally liable for compensation for failure to consult. This provision is especially useful where there are doubts over the solvency of one of the parties, or where the transferee is situated outside the UK, making enforcement more difficult.