Consultation and collective rights under TUPE

There are rights to information and collective consultation under TUPE, found in regulations 13 and 14. For transfers taking place on or after 31 January 2014, employee rights to be informed and consulted have changed in important ways, explained on pages 371-373.

Where there is a recognised union, consultation must take place with representatives of that union. If there is no union, consultation must take place with either reps who have been appointed or elected generally for consultation and information purposes, or reps elected specifically for the purposes of the transfer.

If no representatives are elected, the employer must inform and consult employees directly (Howard v Millrise Ltd & S G Printers t/a Colourflow EAT/0658/04 [2005] IRLR 84). Reps should be allowed access to employees and appropriate facilities. For more information on what amounts to an appropriate consultative body where there is no union — including successfully challenging their right to represent the employees affected, see Chapter 11. This Chapter also contains more information on the rights of reps who carry out collective consultation duties.

Unlike in the context of collective redundancy consultation under the Trade Union and Labour Relations (Consolidation) Act 1992, under TUPE there is no minimum number of employees who must be affected before the obligation to inform and consult collectively is triggered. There is a duty to inform (and consult if measures are envisaged) even if just one employee transfers.

Under regulation 13A of TUPE, the information and consultation duties of “micro-businesses” have been modified for all transfers on or after 31 January 2014. Micro-businesses are businesses employing less than ten employees. These employers remain under a statutory duty to consult in relation to the TUPE transfer, regardless of how few employees are affected. However, where there is no recognised union, the employer can opt to consult directly with the workforce instead of through representatives.