The “special circumstances” defence

Under the TUPE regulations, an employer may be able to reduce or escape their liability for a protective award for inadequate consultation if they can point to “special circumstances” that made it “not reasonably practicable” to perform the duty, as long as they can demonstrate that they did all that was reasonably practicable to consult given those circumstances. The principles and the cases on “special circumstances” in the context of a collective redundancy setting apply equally here (see Chapter 11: Redundancy).