LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 4

What are “measures”?

[ch 4: pages 37-38]

The employer has a duty to consult when it envisages it will take “measures” in relation to affected employees in connection with the transfer.

Although TUPE contains no definition of “measures”, there is case law as to what it means. In Todd v Strain and others [2010] UKEATS/0057/10/BI, the EAT described “measures” as “a word of the widest import, which includes any action, step or arrangement…deliberately done by the transferor” over and above what necessarily happens as a result of the transfer itself. In other words, anything that is an inevitable result of the transfer (for example, changes to pay roll arrangements, or the change to the identity of the employer) will not be a measure, while anything that is not an inevitable result of the transfer is a measure.

Ms Todd owned a care home which she sold to Care Concern Limited. A couple of months before the transfer, she called a staff meeting to tell them of the sale and to confirm that their jobs were safe. She then provided periodic updates, but she did not provide information to, or engage in consultation with reps, or give detailed information to staff. The EAT found that Ms Todd had failed in her duty to inform or consult on three “measures” envisaged in connection with the transfer, namely:

• early payment of wages;

• payment arrangements for untaken holiday; and

• information about a tax rebate for some staff.

These were all “measures” taken by Ms Todd to put the books in order before the transfer. The EAT confirmed that Ms Todd was obliged to consult with representatives about these measures. The fact that the new employer would be responsible for wages post-transfer was not a “measure”, because it was an inevitable consequence of the transfer. However, changes to arrangements for the normal payment date, or for payment of holidays were not inevitable. This meant they were “measures” calling for consultation.

The fact that measures are beneficial to employees is irrelevant to the question whether the duty to consult is triggered. Here, for example, early payment benefited Ms Todd’s staff, who were unlikely to object in consultation. This made no difference to the duty to consult, which is about ensuring employees have the fullest possible picture of how the transfer impacts on their employment, good and bad. Ms Todd was ordered to pay seven weeks’ pay for each affected employee. Care Concern was made jointly liable to pay the compensation, even though it was not at fault.

Todd v Strain [2010] UKEATS/0057/10B1

www.bailii.org/uk/cases/UKEAT/2010/0057_10_1606.html

In Nationwide v Benn [2010] UKEAT0273, the EAT considered whether “job mapping” (the process of attempting to “map out” and then compare the duties attaching to different posts in the two employers) was a measure. Although the tribunal did not need to decide the issue, they rejected the employer’s suggestion that “job mapping” is not a “measure” because it involves projections about staffing levels rather than positive steps to eliminate jobs.