Consultation and collective rights under TUPE 



There are important statutory rights to information and collective consultation under TUPE. These are found in regulations 13 and 14 of TUPE. 



Where there is a recognised union, consultation must be with representatives of that union. If there is no union, consultation must be with either representatives appointed or elected generally for consultation and information purposes, or representatives elected specifically for the purposes of the transfer. Chapter 11 (page 413 onwards) contains more general information about collective consultation, including information about the facilities that should be provided to reps engaged in consultation. Although written in the context of collective redundancies, most of the principles apply equally to statutory consultation before TUPE transfers. 



If no representatives are elected, the employer must inform and consult employees directly (Howard v Millrise Ltd & S G Printers t/a Colourflow [2005] IRLR 84). 



Unlike collective redundancy consultation, there is no minimum number of employees who must be affected before the obligation to inform and consult collectively about a TUPE transfer is triggered. Instead, the duty is triggered even if just one employee transfers. 



TUPE information and consultation obligations apply to all employers, regardless of size, but since 31 January 2014, “micro-businesses” (that is, businesses employing less than 10 employees) can opt to consult directly with employees instead of through representatives, unless there is a recognised union at the workplace (regulation 13A, TUPE, as amended).