What happens if employees invited to elect representatives for informing and consulting on a TUPE transfer fail to do so?
Regulation 13(11) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) provides that, where employees fail to elect representatives for informing and consulting on a TUPE transfer within a reasonable time, the employer should give each affected employee the required information set out in reg.13(2) of the Regulations. This includes the legal, economic and social implications of the transfer for any affected employees and any measures that the employer envisages it will take, in connection with the transfer, in relation to any affected employees. It is important to note that, while reg.13(11) provides for what happens if employees fail to elect representatives within a reasonable time, reg.14 makes it clear that it is primarily the employer's responsibility to make the arrangements for the elections.
If the employees eventually elect employee representatives, the employer should ensure that it meets its collective consultation obligations to avoid the possibility of being subjected to a protective award.