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Who are the “affected employees”?
[ch 4: pages 38-39]To ensure effective consultation, employers should take a broad approach when deciding who to consult, including not just those who transfer but also all those in either organisation whose jobs might be affected, for example through increased workload or changed duties.
According to the 2014 BIS TUPE guidance, “affected employees” could include:
• all employees who are to be transferred;
• co-workers in the transferor employer who will not transfer but whose jobs might be affected by the transfer; and
• new co-workers employed by the new employer whose jobs might also be affected by the transfer.
In UNISON v Somerset County Council [2009] KEAT/43/09, the EAT decided that “affected employees” are “those who will be or may be transferred, or whose jobs are in jeopardy by reason of the proposed transfer, or who have job applications within the organisation pending at the time of transfer. We do not think that the definition extends to the whole of the workforce, nor to everyone in the workforce who might apply for a vacancy in the part transferred at some point in the future.”
Employees left behind after part of the business has transferred are not “affected” just because the transfer has happened, even if the transfer leaves the remaining part financially unviable (I LAB Facilities Limited v Metcalfe [2013] UKEAT/0224/12/RN). There will be a separate duty to consult over any resulting redundancies:
A business provided two different and entirely separate types of service to the media industry, only one of which was financially viable. That part was successfully sold to a new owner under a TUPE transfer, taking with it all the employees who had worked in that side of the business. Initially there was a possibility that the other part of the business could be sold but the sale fell through, the business was placed in the hands of a liquidator and all the employees in that part of the business were dismissed.
The EAT refused to accept the argument that these employees were “affected” by the transfer because the sale of the financially viable part of the business left the remaining part unable to survive, nor on the basis that having been promised their jobs would transfer to a new employer, the transfer was later aborted.
I LAB Facilities Limited v Metcalfe [2013] UKEAT 0224/12/2504