Where only a few employees will transfer to a new employer under TUPE, does the obligation to inform and consult still apply?
What information should an employer give to the representatives of affected employees in a TUPE situation?
What is the purpose of any consultations that take place on a TUPE transfer?
An employer that is the transferor or transferee in a TUPE situation must provide certain information to
"appropriate representatives" of its affected employees long enough before the proposed
transfer to enable it to meet its obligation to consult (where consultation is
The employer must inform the representatives that the relevant
transfer is to take place, when, approximately, it is to take place and the
reasons for it. It must also inform them of the legal, economic and social
implications of the transfer for any affected employees and the measures that
it envisages that it will take in relation to affected employees, in connection
with the transfer. If it is envisaged that no measures will be taken, the
representatives must be informed of that fact.
The "affected employees" include not only those who are transferring, but also those who may be affected by the transfer or measures taken in connection with it. Therefore, there will be a duty on the transferee to provide information to representatives of its existing employees, if they may be affected.
The transferor must inform the representatives of its affected employees of the
measures that the transferee is likely to take in relation to those of its
employees whose contracts of employment are to be transferred (but there is no duty for the transferor to consult with its employees on those measures).
The information provided by the employer must include "suitable information relating to the use of agency workers". This means:
- the number of agency workers working temporarily for and under the supervision and direction of the employer;
- the parts of the employer's undertaking in which those agency workers are working; and
- the type of work those agency workers are carrying out.
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?
What duties do employee representatives elected for informing and consulting on a TUPE transfer have?
What happens if employees invited to elect representatives for informing and consulting on a TUPE transfer fail to do so?
XpertHR provides answers to more than 1,000 FAQs. But that's not all...
Request a demo today to find out how XpertHR can benefit your organisation