What information must be provided to reps?

Employers have a duty to inform employee representatives of:

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

• the likely legal, economic and social consequences for the 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 introduced as a result of the Agency Workers Regulations 2010, through an amendment to the collective consultation obligation under section 188(4) of the Trade Union and Labour Relations Consolidation Act 1992. If only part of the business is being transferred, the information must be provided not just about the agency workers who work in the transferring part, but also those working in all other parts of the employer’s business, as long as they are under the “supervision” of the transferor. Public services union UNISON has won important tribunal victories enforcing these new regulations to achieve protective awards for members, most recently London Borough ofBarnett v UNISON [2013] UKEAT 0191/13/1912. For more information see page 323.

This information must be provided long enough before the transfer for effective consultation to take place. Employers who elect to engage in voluntary consultation must meet the same standard as obligatory 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 relying on their employer’s initial assurances that the transfer will go ahead (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN).