LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 4

Who is liable for a failure to inform and/or consult?

[ch 4: page 48]

The duty to inform or consult before the transfer is owed by each employer to its own workforce (UCATT v Glasgow City Council [2008] UKEAT/7/08). However, liability for that failure is shared jointly by both the transferor and the transferee. As a result, any employment tribunal claim for failure to inform and consult is usually brought against both transferor and transferee. This provision is helpful where there are doubts over the solvency of one of the parties, or where the transferee is situated outside the UK, making enforcement difficult.

In one particular situation under TUPE, the transferee is solely liable for the transferor’s failure to inform transferring employees. This is where the failure is as a result of the transferee’s failure to pass to the transferor information needed in order to be able to inform employees properly (TUPE Regulation 15(9)).

The transferee is also solely liable for any separate protective award under TULCRA arising out of pre-transfer collective consultation over redundancies under the new provisions introduced by the 2014 Regulations, outlined on page 44-46. This is regardless of whether the failure to consult adequately is the result of non-cooperation by the transferor.