What defences are available to an employer who fails to inform and/or consult?

Regulation 15(2) of TUPE provides a defence for a failure to provide information or to consult if the employer can demonstrate:

• “special circumstances” that made it “not reasonably practicable” to inform and/or consult (but see above for important exceptions); and

• that it took all reasonably practicable steps to perform the duty.

Tribunals interpret this defence narrowly. “Special circumstances” must be something unforeseen or unexpected, out of the ordinary run of commercial or financial events. Special circumstances do not provide an absolute defence to a claim for a protective award, but they can reduce its size and occasionally even eliminate the award altogether, depending on the employer’s efforts to consult effectively in the time available.

Given that a key purpose of consultation is to enable employees to plan and decide how to respond to transfers (Todd v Strain [2010] UKEAT 0057/09/1606), the fact that consultation would have “made no difference” is never a defence.