Redundancy consultation and TUPE

Where a business is sold as a going concern, the Transfer of Business (Protection of Employment) Regulations 2006 (TUPE) are triggered. TUPE has its own collective consultation regime, found in regulations 13 and 14. The duty to consult under TUPE arises when an employer envisages taking measures in relation to affected employees as a result of a transfer. There is no minimum number of employees who must be affected before the duty to consult collectively under TUPE is triggered.

The government plans several changes to the law on collective consultation when it amends the TUPE regulations in early 2014, the effect of which will dilute the protection of employees at risk of redundancy. Under TUPE in its current form, a prospective new employer (the transferee) has no legal right to consult with the incoming workforce until after the transfer. This means that collective consultation for any redundancies from among transferring staff cannot start until the transfer date. The government intends:

• to allow (but not require) incoming employers (transferees) to consult with the incoming workforce before the transfer date, with the consent of the transferor; and

• to change the law so that this pre-transfer consultation counts towards the 30/45 day collective consultation period for any redundancies implemented after the transfer date, as long as the consultation is “meaningful”.