The special circumstances defence 





Under the TUPE regulations, an employer can reduce or even escape a protective award for inadequate consultation if they can point to “special circumstances” that made it “not reasonably practicable” to consult, as long as they can show that they did everything reasonably practicable to consult given those circumstances (regulation 15(2), TUPE). 


On pages 398-399 of Chapter 11, there are some examples of recent cases showing “special circumstances“ put forward by employers to try to reduce or avoid their liability for a protective award for failing to consult properly before making collective redundancies. These examples are equally relevant when it comes to working out whether an employer is likely to be able to demonstrate “special circumstances” if they fail to consult before a TUPE transfer.