Consultation and collective rights under TUPE

There are rights to information and collective consultation under TUPE, found in regulations 13 and 14. For transfers on or after 31 January 2014, employee rights to be informed and consulted changed in important ways, explained on pages 389-390.

Where there is a recognised union, consultation must take place with representatives of that union. If there is no union, consultation must take place with either reps who have been appointed or elected generally for consultation and information purposes, or reps elected specifically for the purposes of the transfer. See Chapter 11 for information on challenging a standing employee consultation body where there is no recognised union (page 337). Chapter 11 also contains more information on the rights of reps who carry out collective consultation duties. Reps should be allowed access to employees and appropriate facilities.

If no representatives are elected, the employer must inform and consult employees directly (Howard v Millrise Ltd & S G Printers t/a Colourflow EAT/0658/04 [2005] IRLR 84).

Unlike collective redundancy consultation, there is no minimum number of employees who must be affected before the obligation to inform and consult collectively about a TUPE transfer is triggered. The duty is triggered even if just one employee transfers.

Under regulation 13A of TUPE, for all transfers on or after 31 January 2014, micro-businesses (i.e. businesses that employ less than ten employees) have modified information and consultation duties. These employers must still inform and consult in relation to a TUPE transfer but unless there is a recognised union, they can opt to consult directly with employees instead of through representatives.