Where only a few employees will transfer to a new employer under TUPE, does the obligation to inform and consult still apply?

The obligation to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) applies irrespective of the number of employees involved in the proposed transfer. This obligation to inform and consult does not have numbers criteria in the same way as the obligation to inform and consult in collective redundancy situations.

The obligation is to consult with union representatives if the employees are of a description in respect of which a union is recognised, or employee representatives. If there are no employee representatives the employer should allow time for the election of employee representatives. Where small numbers are concerned this ought not to be too onerous.

Micro-businesses (those with fewer than 10 employees) are exempt from the requirement to hold elections for employee representatives where there is no recognised union or existing appropriate representatives. They must still inform and consult, but can do so directly with the affected employees. The exemption applies only to micro-businesses; larger employers must hold elections where there are no existing representatives, even if fewer than 10 employees are affected by the transfer.