What if the employer misinterprets the effect of TUPE?

The employer’s duty is to consult on the position as it genuinely believes it to be. The employer does not promise that its interpretation of TUPE is correct. In Royal Mail Group v CWU [2009] EWCA Civ 1045, the Court of Appeal accepted that Royal Mail genuinely but mistakenly believed, on the basis of legal advice, that TUPE did not apply to the transfer of a number of post office branches to WH Smiths. The employer consulted on this basis with the CWU. Even though this belief turned out to be mistaken, the Court of Appeal held that the employer met its statutory obligation to consult, because it consulted on the basis of its genuine understanding of the legal position, however flawed.

However, it seems unlikely that this “escape clause” would help an employer who fails to provide any information or to engage in any consultation at all until after the transfer date has passed, as a result of failing to appreciate that TUPE might have been triggered.