When should consultation start? 



The requirement for consultation to be meaningful means that employers must engage in TUPE information and consultation as early as practically possible. 



Unions generally expect to be consulted not only on the operational implications of a transfer but also on the strategic question of whether outsourcing is necessary or appropriate at all, and the possibility of alternatives, such as an in-house bid. Strictly speaking, the legal duty to inform and consult under TUPE is not triggered until the employer has decided on a transfer and has a proposed transfer date.


Even so, reps should try to encourage early discussions and information sharing. Ideally, there will be a collective agreement on information and consultation providing for union involvement from the start. In any event, 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 406 of Chapter 11).