LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 4

Can commercial sensitivity concerns justify failing to inform or consult?

[ch 4: page 50]

No. Union reps can and often do sign commercial confidentiality agreements before being supplied with commercially sensitive information by the employer. In Unite v Waverley TBS Limited Case No. 2506345/2012, 9 September 2013 unreported, a tribunal judge was scathing about an administrator’s reliance on confidentiality concerns to avoid consulting with reps out of a misplaced concern about jeopardising a possible sale. “I do not regard these fears as mitigating in any way the [employer’s] failure”, he said. “Even if the employer or administrator enters into a confidentiality agreement, it does not trump the statutory duty to consult. It should not be assumed that trade unions will not themselves abide by conditions of confidentiality, even keeping information from their own members, during consultation periods.”