Who has consultation rights?

If an independent union is recognised, trade union reps are consulted. If there is no recognised trade union or any employee representatives, employers must arrange elections amongst the affected employees to elect representatives to consult about the transfer.

Since 31 January 2014, a new statutory right has been in force to carry out pre-transfer consultation on collective redundancy dismissals. This allows an incoming employer to start consulting with a transferor’s workforce, with the transferor’s consent, before becoming their employer.

This has allowed micro-businesses (employing fewer than 10 employees) to consult directly with employees, instead of through representatives, unless there is a recognised union at the workplace.

TUPE applies both to the public and private sector but intra-governmental transfers are subject to the Cabinet Office Statement of Practice: Staff transfers in the Public Sector (COSOP). Public sector union UNISON points out that, under the regulations, union recognition also transfers, but it is important to get a formal agreement from the new employer that recognition will continue, and that adequate facility time will remain as part of those arrangements.