Who must be informed and consulted 





All employees who could be affected by a change of employer have the right to be informed in advance of what is happening. The duty to inform arises on every transfer. The duty to consult arises whenever an employer envisages that it will take measures in relation to the affected employees, or knows that the incoming employer will take measures. 





“Affected employees” for the purpose of information and consultation duties include not just those whose job may transfer but also anyone whose job is at risk as a result of the proposed transfer and anyone who does not transfer but who is affected by the transfer because, for example, their duties will change, expand or contract as a result (UNISON v Somerset County Council [2010] ICR 498).





Employees are not “affected” by a transfer just because they will be left behind after the transfer, even if the business left behind will be financially less viable (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). If those left behind are at risk of redundancy, they have a separate right to be consulted under the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) if 20 or more employees are at risk of losing their jobs in a 90-day period (see Chapter 11). 


“Measures” is not defined in TUPE but it is a very wide concept. It includes any deliberate step, action or arrangement that is not an inevitable result of the transfer (Todd v Strain and others [2010] UKEAT 0057/09/B1). Changing job functions or roles, making redundancies and relocating staff are all obvious measures. In Todd, the fact that the new employer was responsible for wages was not a “measure” because this happens on every transfer. However, the fact that wages would be paid early was a measure. So were special payment arrangements for untaken holiday. Neither of these were an inevitable result of the transfer so the employer should have consulted with staff reps about them.



The fact that measures will benefit employees does not remove or reduce the duty to consult. In Todd, early payment of wages was a measure requiring consultation even though no employees were likely to object. This is because a key purpose of consultation is to give employees the fullest possible picture of the likely impact of a transfer, good and bad, so they can prepare. 





The transferring employer (transferor) must consult before the transfer with its own employees over any measures it is proposing and over any measures it knows the incoming employer (transferee) is considering. The incoming employer (transferee) must consult with its own employees, again before the transfer date, over any measures it is considering (regulation 13(2), TUPE). There is no statutory obligation to consult with each other’s workforces before the transfer, although this is best practice.


The incoming employer (transferee) must give the outgoing employer (transferor) all the information it needs to be able to consult properly with its own employees about the new employer’s plans (regulation 13(4), TUPE).




There is no obligation under TUPE to consult collectively after the transfer date (UCATT v Glasgow City Council [2008] UKEAT/7/08). However, if the new employer proposes 20 or more redundancies, there is a separate duty to consult collectively under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (see Chapter 11: Redundancy). 


The TUPE duty to inform and consult can be triggered when jobs transfer overseas from a UK-based business, even to a non-EU country. A UK-based employer that fails to consult its own workforce in this situation can be made to pay a protective award (Hollis Metal Industries Ltd v GMB & another [2008] IRLR 187).