Enforcing the TUPE information and consultation duties

If the employer fails to inform or consult reps (or individual employees if there is no rep), a claim can be made to the employment tribunal for a protective award. This must be made within three months of the transfer date. As usual, there is discretion to extend time, but that discretion is rarely exercised. There are now tribunal fees for this kind of claim. There are special rules for fees and multiple claims. Acas early conciliation applies to this type of claim. See Chapter 1 for information about tribunal fees and Acas early conciliation.

The tribunal can award up to 13 weeks’ pay. According to the EAT, this should be worked out in the same way as for a protective award in cases of redundancy. It should reflect the seriousness of the employer’s failure. Where there has been no consultation at all, the starting point should be the maximum amount (Sweetin v Coral Racing [2006] IRLR 252). If there has been some consultation, albeit inadequate, a tribunal need not necessarily start with the maximum (London Borough of Barnett v UNISON [2013] UKEAT 0191/13/1912).

A “week’s pay” for the purposes of a protective award under TUPE is “uncapped”. In other words, the award is of an actual week’s pay (Zaman & others v (1) Kozee Sleep Products Limited (2) Dorlux Beds (UK) Ltd [2010] UKEAT 0312/10).