In the context of a TUPE transfer, can pre-transfer consultation by the transferee with transferring employees count for the purposes of collective redundancy consultation?

Yes, consultation with the relevant employees by the transferee that takes place prior to the transfer can count for the purposes of complying with the collective redundancy consultation duty, even though the transferee is not yet the employer of the transferring employees.

Under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992, an employer is required to consult with a recognised trade union or appropriate employee representatives if it is proposing to make 20 or more employees redundant within 90 days. If 100 or more employees are to be dismissed, the consultation must begin at least 45 days before the first dismissal takes effect. If between 20 and 99 employees are to be dismissed, the consultation must begin at least 30 days before the first dismissal.

Pre-transfer consultation by the transferee will count for the purposes of complying with the collective redundancy consultation duty only if:

  • the transferee notifies the transferor in writing that it has chosen to carry out pre-transfer consultation with the affected employees; and
  • the transferor agrees to the transferee carrying out such consultation.

Once the transferee has notified the transferor that it has chosen to carry out pre-transfer consultation, it can change its mind at any time by giving further written notice to the transferor. In these circumstances, any pre-transfer consultation already carried out will not count for the purposes of the collective redundancy consultation duty.