What is the process for electing representatives under TUPE?

Where there is no recognised trade union and no standing non-union employee consultation body, the employer must invite affected employees to hold elections to select representatives. Regulation 14 lays down the rules for elections. The employer should:

• make “reasonably practicable” arrangements to ensure the election is fair;

• decide how many representatives there should be. There must be “sufficient” reps to represent the interests of all affected employees;

• can decide whether or not different classes of employee have their own representatives;

• can decide on their length of office, which must be “sufficient” for the information and consultation process to take place;

• only “affected” employees can stand for election and no affected employees can be unreasonably excluded;

• all affected employees have the right to vote, either by class of representative or for the full list;

• individuals must have the opportunity to vote in secret, with the votes being accurately counted; and

• facilities must be in place to enable votes to be accurately counted.

As long as an employer has invited affected employees to elect representatives, if they do not do this within a reasonable period of time, the employer is not in breach of its duty to consult. In these circumstances, the employer must give the statutory information listed on page 35 directly to the affected employees (Howard v Millrise Ltd & S G Printers t/a Colourflow [2005] IRLR 84). If “measures” are envisaged, the employer must consult directly with individual employees.

Where the number of candidates putting themselves forward for election precisely matches the number of representatives required, so that in practice, there is no contest, there is no absolute requirement to hold a ballot (Phillips v Xtera Communications Limited [2011] UKEAT/0244/DM).

Where an elected employee representative ceases to act as a representative, leaving employees unrepresented, a fresh election must be held satisfying the rules summarised above (2014 BIS TUPE guidance).

The 2014 BIS TUPE guidance reminds employers of the need to provide a reasonable balance between different categories of affected employee, and to:

• ensure employees have enough time to nominate and consider candidates;

• ensure employees (including any absent from work for any reason) can freely choose who to vote for;

• check whether there is any normal company custom and practice for similar elections and if so, whether there are good reasons for departing from it.

Employers are often tempted to rush the process for electing representatives. If insufficient steps are put in place to ensure all employees can participate including, for example, shift workers and employees on maternity or sick leave, this can lead to a protective award.