When is the duty to consult on TUPE measures triggered?

The need for consultation to be meaningful means that employers should engage in the TUPE information and consultation process as early as practically possible. Unions will often want to consult not just on the operational implications of a transfer but also on the strategic question of whether outsourcing can be avoided, and the possibility, for example, of an in-house bid.

The legal duty to inform and consult under TUPE is not triggered until the employer has decided on a transfer and proposed transfer date, but reps should encourage the employers to begin early discussions and early sharing of information provision. Ideally, a collective agreement should already be in place providing for union involvement right from the start. Where a transfer is almost inevitably expected to lead to collective redundancies (20 or more dismissals) reps should be consulted earlier in any event, on the strategic proposal to transfer the business (UK Mining v NUM [2007] UKEAT 0397/06/2709).

Bear in mind also the public sector equality duty under section 149 of the Equality Act 2010 (EA 10), which requires public bodies, when exercising their functions or considering delegating those functions through outsourcing, to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations in relation to the protected characteristics under the EA 10.