Who can bring the claim?

If there are trade union or employee representatives, the claim must be brought by the relevant representatives (Regulation 15(1) TUPE).

The claim can only be brought by an affected employee if:

• it relates to failure to elect representatives; or

• there are no employee representatives

In Northgate HR Limited v Mersey [2007] UKEAT/0446/06/DM, a claim involving collective redundancy consultation under TULRCA, the tribunal confirmed that where there are reps in place, whether union or non-union, an individual employee cannot bring a claim for breach of the statutory information and consultation duties. In this case, Mr Mersey tried to argue that the “employee consultation council” installed by his employer as a standing non-union employee consultation body did not have the same independence as a trade union, and that for him to be genuinely protected, he should be allowed to enforce the remedy provisions as an individual.

The Court of Appeal rejected his argument, confirming that these provisions are primarily intended to deal with complaints about collective issues not individual ones (Mono Car Styling SA v Odemis [2009] 3 CMLR 47 ECJ). An individual with a complaint should bring it through his representative, and a tribunal should make “no value judgments” as to the independence or otherwise of non-union verses union reps. In Nationwide Building Society v Benn [2010] UKEAT0273, the EAT confirmed that the same applies equally to consultation under TUPE. These cases may now need looking at again in the light of Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/JT (see page 40).