Timescale for TUPE consultation 





There is no minimum or fixed consultation period under TUPE. Most importantly, consultation must be meaningful. The case examples on meaningful consultation in Chapter 11: Redundancy: Collective consultation, are equally useful here.





The requirement for consultation to be meaningful means that employers must engage in TUPE information and consultation as early as practically possible. Unions generally expect to be consulted not only on the operational implications of a transfer but also on the strategic question of whether outsourcing is needed at all and on possible alternatives, such as an in-house bid. The formal legal duty to inform and consult under TUPE is not triggered until the employer has decided on a transfer and has a proposed transfer date (regulation 13(2)(a), TUPE).
Even so, reps should try to encourage earlier discussions and information sharing. Ideally, there will be a collective agreement providing for union involvement from the start. 


In any event, whenever a transfer, if executed, would be very likely to lead to collective redundancies (that is, placing more than 20 jobs at risk), unions should be consulted at the strategic decision-making stage, due to a key ruling, UK Mining v NUM [2007] UKEAT 0397/06/2709, discussed on page 391, Chapter 11). This ruling established that where a proposal such as a transfer, if implemented, will almost inevitably result in redundancies, employers must consult on the merits of that strategic proposal, not just on the way the proposal is to be implemented.


In addition, if there is an information and consultation agreement under the Information and Consultation Regulations 2004, earlier consultation is likely to be required (see Chapter 5, page 168).


The employer’s formal obligation is to consider any representations made and reply, with reasons for objection where appropriate (regulation 13(6), TUPE).