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Where only a few employees will transfer to a new employer under TUPE, does the obligation to inform and consult still apply? What is the purpose of any consultations that take place on a TUPE transfer? What information should an employer give to the representatives of affected employees in a TUPE situation? The duty to consult in a TUPE situation arises where an employer envisages taking measures in relation to affected employees, but what sort of measures would this cover? What is the time period over which the employer must consult on a TUPE transfer? What is the time frame for electing employee representatives for informing and consulting on a TUPE transfer? Who has to be informed and consulted on a TUPE transfer? What happens if the transferor or transferee fails to consult or inform adequately on a TUPE transfer? How many employee representatives are necessary for informing and consulting on a TUPE transfer? What should the employer do where an employee representative for informing and consulting on a TUPE transfer ceases to act as such? Can an employer place restrictions on who can stand as a candidate in elections for informing and consulting on a TUPE transfer?
The role of employee representatives in the context of a TUPE transfer is to receive information from the employer, convey this information to their constituent employees and represent the views and opinions of those employees in any consultation process. They are required to represent the interests of all the affected employees, not just their own interests, and should take reasonable steps to ensure that the views of the affected employees are taken into account by the employer as part of the consultation process.
The employer must disclose certain information to the representatives, including the measures that it envisages it will take, in connection with the transfer, in relation to any affected employee. Consultation must be undertaken with a view to seeking the agreement of the employee representatives to the intended measures. The employer must consider and reply to any representations made by the representatives.
The employees must be given access to the affected employees and afforded such accommodation and other facilities as may be appropriate for that purpose. They have a statutory right to reasonable paid time off to perform their functions.
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