Who has the right to be informed and consulted and when

All employees who could be affected by a change of employer have the right to be informed in advance of what is happening. The duty to inform arises on every transfer. The duty to consult arises whenever an employer envisages that it will take measures in relation to the affected employees.

Affected employees include not just the transferring staff, but also those who may transfer, those whose jobs are at risk as a result of the proposed transfer and those who do not transfer but who are affected by the transfer because, for example, their duties will change, expand or contract as a result (UNISON v Somerset County Council [2010] ICR 498).

Employees who are left behind after part of the business has transferred are not “affected” by measures just because a transfer has taken place, even if the transfer leaves the part that is left behind financially less viable (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). There will be a separate right to be consulted under TULCRA if employees left behind after the transfer are at risk of redundancy (see Chapter 11).

“Measures” is not defined in the regulations but it is a very wide concept that includes any deliberate step, action or arrangement that is not an inevitable result of the transfer (Todd v Strain and others [2010] UKEAT 0057/09/1606). Changing job functions, making redundancies and relocating staff are all “measures”.

In Todd, the fact that a new employer was responsible for wages was not a “measure” because it was an inevitable result of the transfer. By contrast, the fact that wages would be paid early was a measure. So too were special payment arrangements for untaken holiday. Neither of these were an inevitable consequence of the transfer, so the employer was obliged to consult with staff reps about them.

The fact that measures will benefit employees does not remove the duty to consult. In Todd, early payment of wages was still a measure requiring consultation even though no employees were likely to object. This is because a key purpose of consultation is to give employees the fullest possible picture of the likely impact of a transfer on them so that they can prepare.

The departing employer must consult before the transfer with its own workforce over any “measures”, including any measures it knows the incoming employer is considering. Likewise the incoming employer must consult with its own workforce — again before the transfer (regulation 13(2), TUPE). There is no statutory obligation to consult with each other’s workforces before the transfer, although this is best practice.

The incoming employer must provide the information the departing employer needs in order to consult properly with its own workforce about the new employer’s plans (regulation 13(4), TUPE).

There is no obligation under TUPE to consult collectively after the transfer date (UCATT v Glasgow City Council [2008] UKEAT/7/08). However, if the new owner proposes 20 or more collective redundancies, there is a separate duty to consult collectively under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (see Chapter 11: Redundancy).