When should consultation start?

The need for consultation to be meaningful means that employers should engage in TUPE information and consultation as early as practically possible. Unions often want to be consulted not only on the operational implications of a transfer but also on the strategic question of whether outsourcing can be avoided, and the possibility of an in-house bid.

The legal duty to inform and consult under TUPE is not triggered until the employer has decided on a transfer and proposed transfer date. Even so, reps should encourage the employer to begin early discussions and information sharing. Ideally there will be a collective agreement providing for union involvement from the start. Where a transfer will almost inevitably lead to collective redundancies, reps should be consulted earlier on the strategic proposal to transfer the business (see UK Mining v NUM [2007] UKEAT 0397/06/2709, discussed on page 325 of Chapter 11).