When should consultation start?

The requirement for consultation to be “meaningful” means that employers must engage in TUPE information and consultation as early as practically possible.

Unions generally expect to be consulted not only on the operational implications of a transfer but also on the strategic question of whether outsourcing is necessary or appropriate, and the possibility of alternatives such as an in-house bid. Strictly speaking, the legal duty to inform and consult under TUPE is not triggered until the employer has decided on a transfer and a proposed transfer date. Even so, reps should try to encourage early discussions and information sharing. Ideally there will be a collective agreement providing for union involvement from the start. In any event where a transfer will almost inevitably lead to collective redundancies, reps should be consulted earlier on the strategic proposal to transfer the business (see UK Mining v NUM [2007] UKEAT 0397/06/2709, discussed on page 333 of Chapter 11).