Statutory obligation to inform and consult

Under regulation 13 TUPE, an employer is under a duty to inform “appropriate representatives” that a transfer will be taking place, its implications, and any “measures” which are envisaged in connection with the transfer. Where there is a recognised union, this means the union must be informed.

If an employer envisages that it, or the new employer, will take measures in relation to the affected employees, there is also a statutory duty to consult collectively. Failure to inform or consult collectively will result in liability for a protective award.

“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).

The old employer only needs to consult if it “envisages” the measures. So if the old employer is just transferring the employees without taking any measures, and the new employer makes changes which the old employer did not know about, a complaint about a failure to consult is unlikely to succeed.

Since 1 July 2024, there is no obligation to consult employees directly if the employer employs fewer than 50 employees; or fewer than 10 employees are transferred.

For more information see LRD’s annual publication Law at Work.