Who has the right to be informed and consulted and when?

All employees who could be affected by a change of employer have the right to be informed in advance of what is happening. The duty to inform arises on every transfer. The duty to consult arises whenever an employer envisages that it will take measures in relation to the affected employees.

Affected employees include not just the staff who transfer, but also those who may transfer, those whose jobs are at risk as a result of the proposed transfer (UNISON v Somerset County Council [2010] ICR 498) and those who do not transfer but are affected by the transfer because, for example, their duties will change, expand or contract as a result.

Employees left behind after part of the business has transferred are not “affected” just because the transfer has taken place, or even just because the transfer leaves the remaining part financially less viable (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). These employees will have a separate right to be consulted if they are at risk of redundancy as a result of the transfer (see Chapter 11).

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”. Anything that is not an inevitable result of the transfer is a measure. In Todd, the fact that a new employer was responsible for wages was not a “measure”, because it was an inevitable result of the transfer. By contrast, the fact that wages would be paid early was a measure, as was the making of special payment arrangements for untaken holiday. Neither of these were an inevitable consequence of the transfer, so Ms Todd was obliged to consult with staff reps about them.

The fact that measures will benefit employees does not remove the duty to consult about them. In Todd, early payment of wages was still a measure requiring consultation, even though no employees were likely to object. This is because a key purpose of consultation is to give employees the fullest possible picture of the likely impact of a transfer on them.

“Job mapping” is probably a measure (Nationwide v Benn [2010] (UKEAT0273). In this case, the EAT rejected the employer’s suggestion that “job mapping” is not a “measure” because it involves projections about manpower, rather than positive steps to achieve manpower reduction.

As the law currently stands, the out-going employer (the transferor) must consult with its own workforce, and the incoming employer (the transferee) must consult with its own workforce — in both cases before the transfer takes place. There is currently no obligation to consult with each other’s workforces before the transfer, although this is best practice.

Similarly, there is no obligation under TUPE to consult collectively after the transfer has taken place (UCATT v Glasgow City Council [2008] UKEAT/7/08), unless the new owner proposes collective redundancies covered by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (see Chapter 11: Redundancy).