4. CONSULTATION RIGHTS

Workplace representatives are entitled to be informed about a transfer before it takes place and to be consulted if changes are envisaged as a result of the transfer. This Chapter explains:

• the law on information and consultation under TUPE;

• changes to these rights as a result of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (the 2014 Regulations);

• what action reps can take if the employer breaches its statutory duties; and

• the employer’s duty to disclose Employee Liability Information to the transferee.

Employees can only be properly protected on a transfer if they know what is happening and can have an input into decisions about their future employment. Broadly speaking, TUPE says that all employees who could be affected by a change of employer have the right to be informed in advance as to what is planned. This includes both employees working for the old employer (the transferor) and those working for the new employer (the transferee).

The aim of the TUPE information and consultation process is to provide enough information, in enough time, to enable genuine consultation between the employer and employee representatives.

The duty to inform arises on every transfer. The duty to consult only arises where an employer envisages that it, or the new employer, will take “measures’ in relation to the affected employees. The meaning of “measures” is explained on page 37.

The law governing information and consultation is found in Regulations 13 and 14 of TUPE. For transfers taking place on or after 31 January 2014, these rights have been changed in important ways by the 2014 Regulations. The changes are explained on pages 44-47.

Where there is a recognised union, consultation must be with union reps. If there is no union, consultation must be with either appropriate representatives who have been appointed or elected generally for consultation purposes, or representatives elected specifically for the purposes of the transfer. In future, direct consultation is to be allowed for employers of less than 10 employees in some circumstances. For details see page 40.

Strictly speaking, only “affected employees” are entitled to be consulted under TUPE. However, good industrial practice is to consult with all workers.