What information must be provided to reps? 





Employers have a duty to inform employee representatives of:




• the fact that the transfer is happening, the reason why, and the proposed date;





• the likely legal, economic and social consequences for affected employees; 





• what measures are likely to be taken in relation to affected employees, or if no measures are to be taken, confirmation of this;





• the number of agency workers working temporarily for and under the supervision and direction of the employer;





• the parts of the employer’s undertaking in which those agency workers are working; and





• the type of work those agency workers are carrying out.





The requirement to disclose information about agency workers was added by the Agency Workers Regulations 2010 (section 188(4), TULRCA, as amended). If only part of a business is being transferred, information must be provided not just about the agency workers who work in the transferring part but also any working in all other parts of the employer’s business, as long as they are under the transferor’s supervision. 





The information must be provided long enough before the transfer for effective consultation to take place. 


Employers who engage in voluntary consultation must meet the same standard as mandatory consultation, or else risk a protective award (Cable Realisations Ltd v GMB Northern [2010] IRLR 42).


There is no obligation to consult under TUPE if a transfer is planned but later abandoned, even if employees change their position in reliance on their employer’s initial assurances that the transfer will go ahead (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN).