The special circumstances defence

Under the TUPE regulations, an employer can reduce or even escape a protective award if they can point to “special circumstances” that made it “not reasonably practicable” to consult, as long as they can show that they did everything reasonably practicable to consult given those circumstances (regulation 15(2), TUPE).

On pages 430-432 of Chapter 11, there are some examples of cases illustrating “special circumstances” put forward by employers to try to reduce or avoid their liability for a protective award for failing to consult properly before making collective redundancies. These examples are equally relevant to the consultation obligations triggered by a TUPE transfer.