Employers’ duty to provide information to representatives

Before a relevant transfer, employers must provide the following factual information to the appropriate representatives (Regulation 13(2) of TUPE):

• the fact that there is to be a transfer, and the reasons why;

• the date or proposed transfer date;

• the likely legal, economic and social consequences of the transfer for affected employees;

• what measures are likely to be taken in relation to affected employees;

• if no measures are to be taken, confirmation that this is the case;

• what measures will be taken by the new employer or, if none are envisaged, confirmation that this is the case;

• the number of agency workers working temporarily for and under the supervision and direction of the employer;

• the parts of the employer’s undertaking in which those agency workers are working; and

• the type of work those agency workers are carrying out.

The duty to produce information about the use of agency workers was introduced on 1 October 2011 under the Agency Workers Regulations (AWR) (Schedule 2 to the AWRs, amending section 70B of TULRCA (Collective bargaining: training).

Even if only part of a business is transferred, information must be provided about the use of agency workers not just in the transferring part, but also in all other parts of the employer’s business, provided they work under the employer’s supervision.

Public services union UNISON has won two important tribunal victories securing protective awards for members following breaches of the duty to provide information about the use of agency workers under the AWR. The first, against Barnet Council, is under appeal (UNISON v (1) London Borough of Barnet and (2) NSL Limited Case No. 3302128/2012 unreported). The second was brought on behalf of ex-Lambeth Council call centre workers, made redundant as a result of outsourcing by Lambeth to Capita in 2011 (Unison v Capita Business Services Limited, Case No. 2341219/2012, 7 March 2013, London South Employment Tribunal, unreported). For more information, see LRD’s annual employment law guide, Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1664).