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, or knows that the incoming employer will take measures. 


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


Employees are not “affected” by a transfer just because they will be left behind after the transfer, even if the transfer will leave the remaining part of the business financially less viable (ILAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). If those left behind are at risk of redundancy, they will have a separate right to be consulted under the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) where 20 or more employees are at risk of losing their jobs (see Chapter 11). 


“Measures” is not defined in the TUPE regulations but it is a very wide concept that includes any deliberate step, action or arrangement that is not an “inevitable” result of the transfer (Todd v Strain and others [2010] UKEAT 0057/09/1606). Changing job functions, making redundancies and relocating staff are all measures. 


In Todd, the fact that the 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 result of the transfer, so the employer should have consulted 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 was 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, both good and bad, so they can prepare. 


The transferring employer must consult before the transfer with its own workforce over any measures it is proposing, and over any measures it knows the incoming employer is considering. The incoming employer must consult with its own workforce, again before the transfer (regulation 13(2), TUPE). There is no statutory obligation to consult with each other’s workforces before the transfer, although this is best practice.


The incoming employer must provide the information the out-going employer needs to consult properly with its own workforce about the new employer’s plans (regulation 13(4), TUPE). 


There is no obligation under TUPE to consult collectively after the transfer date (UCATT v Glasgow City Council [2008] UKEAT/7/08). However, if the new employer proposes 20 or more redundancies, there is a separate duty to consult collectively under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (see Chapter 11: Redundancy).