What information must be provided to reps?

Employers have a duty to inform employee representatives of:

• the fact that the transfer is taking place, the reason why, and the proposed date;

• the likely legal, economic and social consequences for the affected employees;

• what measures are likely to be taken in relation to affected employees, or if no measures are to be taken, confirmation of this;

• the number of agency workers working temporarily for and under the supervision and direction of the employer;

• the parts of the employer’s undertaking in which those agency workers are working; and

• the type of work those agency workers are carrying out.

The requirement to disclose information about agency workers was added under the Agency Workers Regulations 2010, amending section 188(4) TULCRA. If only part of the business is being transferred, the information must be provided not just about the agency workers who work in the transferring part, but also those working in all other parts of the employer’s business, as long as they are under the “supervision” of the transferor.

The information must be provided long enough before the transfer for effective consultation to take place. Employers who engage in voluntary consultation must meet the same standard as obligatory consultation, or else risk a protective award (Cable Realisations Ltd v GMB Northern [2010] IRLR 42).

There is no obligation to consult under TUPE if a transfer is planned but later abandoned. This is the case even if employees change their position relying on their employer’s initial assurances that the transfer will go ahead (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN).