Who has the right to be informed and consulted and when?

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.

Affected employees include not just the transferring staff, but also those who may transfer, those whose jobs are at risk as a result of the proposed transfer (UNISON v Somerset County Council [2010] ICR 498) and those who do not transfer but are affected by the transfer because, for example, their duties will change, expand or contract as a result.

Employees left behind after part of the business has transferred are not “affected” merely because the transfer has taken place, even if the transfer leaves the remaining part financially less viable (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). Something else is needed. These employees will have a separate right to be consulted if they are at risk of redundancy as a result of the transfer (see Chapter 11).

“Measures” is not defined in the regulations but it is a very wide concept. Any deliberate step, action or arrangement that is not an inevitable result of the transfer is a measure (Todd v Strain and others [2010] UKEAT 0057/09/1606). For example, changing job functions, making redundancies and relocating staff are all “measures”. In Todd, the fact that a new employer was responsible for wages was not a “measure” because it was an inevitable result of the transfer. By contrast, the fact that wages would be paid early was a measure. So too were special payment arrangements for untaken holiday. Neither of these were an inevitable consequence of the transfer, so Todd was obliged to consult with staff reps about them.

The fact that measures will benefit employees does not remove the duty to consult. In Todd, early payment of wages remained 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 on them.

The outgoing employer must consult with its own workforce, and the incoming employer must consult with its own workforce — in both cases before the transfer. There is no obligation to consult with each other’s workforces before the transfer, although this is best practice.

Transferring employees can only claim for failure to inform and consult against their own employer — the transferor — and not against the transferee (Allen v Morrisons Facilities Services Limited [2014] UKEAT 0298/13/1604).

Similarly, there is no obligation under TUPE to consult collectively after the transfer has taken place (UCATT v Glasgow City Council [2008] UKEAT/7/08). If the new owner proposes collective redundancies, there is a separate duty to consult collectively under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (see Chapter 11: Redundancy).