Does the duty to inform and consult extend to outsourcing beyond the UK?

Yes. TUPE can apply to transnational transfers, both within and outside the EU, as long as the transferred business is “situated immediately before the transfer in the UK” (Hollis Metal Industries Limited v GMB [2007] UKEAT/171/07). In this case, the business of Hollis, a curtain rail manufacturer, was transferred from England to Israel. The EAT confirmed that the Acquired Rights Directive covers transfers to countries outside the European Union.

The EAT acknowledged that most individual employment rights could not, in practice, be enforced against an overseas business. Nevertheless, the Hollis decision is important because it confirms that the duty to inform and consult is triggered when jobs leave the UK. Both the UK transferor and the foreign transferee will be jointly liable for financial penalties for failure to consult, allowing employees to claim the full amount of any penalty from the UK-based employer, and overcoming potential practical problems enforcing Court judgments outside the EU.