Who has to be informed and consulted on a TUPE transfer?
Employers must consult either trade union representatives if an independent trade union is recognised by the employer in respect of the affected employees, or if no union is recognised, employee representatives. Employee representatives may be elected specifically to be informed or consulted about the transfers, or they may have been elected for another purpose. 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 can inform and consult directly with the affected employees.
There is always an obligation to provide information to employee representatives, but the obligation to consult arises only if either the transferor or the transferee anticipates taking measures in relation to affected employees in connection with the transfer. Employers contemplating a transfer must inform appropriate employee representatives long enough before the proposed transfer to enable meaningful consultation to take place.
Each party has to inform (and, where appropriate, consult with) only its own affected employees. The transferor is not obliged to consult with affected employees about measures envisaged by the transferee although it does have to inform them about those measures.