Consultation and collective rights under TUPE 





There are important statutory rights to information and collective consultation under TUPE, found in regulations 13 and 14, TUPE. 





Where there is a recognised union, consultation must be with representatives of that union. If there is no union, consultation must be with either representatives appointed or elected generally for consultation and information purposes or representatives elected specifically for the purposes of the transfer. Chapter 11 (page 388 onwards) contains information about collective consultation, including information about the facilities that should be provided to reps engaged in consultation. Although written in the context of collective redundancies, broadly speaking the case law principles explained there apply equally to statutory consultation in the context of TUPE. 





If no representatives are elected, the employer must inform and consult employees directly (Howard v Millrise Ltd & S G Printers t/a Colourflow [2005] IRLR 84). 





Unlike collective redundancy consultation, there is no minimum number of employees who must be affected before the obligation to inform and consult collectively about a TUPE transfer is triggered. The duty is triggered even if just one employee transfers. 





TUPE information and consultation obligations apply to all employers, regardless of size. However, “micro-businesses” (businesses with fewer than 10 employees) can opt to consult directly with employees instead of through representatives unless there is already a recognised union at the workplace (regulation 13A, TUPE, as amended). This exemption for micro-businesses does not apply in Northern Ireland.