Is there a specific date by which consultation should have started?
[ch 4: pages 36-37]No. Unlike the law on collective redundancies, TUPE does not set a specific deadline by which consultation must have begun. The only requirement is that consultation takes place “long enough before a relevant transfer” to enable consultation to take place.
In Cable Realisations Limited v GMB Northern [2009] UKEAT 0538/08/2910, information was given to the union on 15 August, two days before the factory closed for its annual shutdown until 31 August. The transfer took place on 3 September. There were no measures envisaged, so no obligation to consult was triggered. The EAT concluded that the holiday shut-down made it impossible for the information to be used by reps, either with management or with their own members. As a result, the information had not been given long enough before the transfer date for meaningful consultation to take place and a protective award was made.