Enforcing the TUPE information and consultation duties

If the employer fails to inform or consult reps (or individual employees if there is no rep), a claim can be made to the employment tribunal for a protective award. This must be made within three months of the transfer date. As usual, there is discretion to extend time, but time extensions are rare. There are substantial tribunal fees, with special rules for multiple claims. Acas Early Conciliation applies. See Chapter 13 for more information.

The tribunal can award up to 13 weeks’ pay. The award should be worked out as for a protective award in cases of collective redundancy (see page 341) and should reflect the seriousness of the employer’s failure. Where there has been no consultation at all, the starting point should be the maximum 13 weeks (Sweetin v Coral Racing [2006] IRLR 252). If there has been some consultation, albeit inadequate, a tribunal need not necessarily start with the maximum (London Borough of Barnett v UNISON [2013] UKEAT 0191/13/1912).

A “week’s pay” for these purposes is “uncapped”. In other words, the award is of an actual week’s pay (Zaman & others v (1) Kozee Sleep Products Limited (2) Dorlux Beds (UK) Ltd [2010] UKEAT 0312/10). As a result, awards can be very substantial, especially when large groups of employees are affected.