Editor's message: In the case of a TUPE transfer or service provision change covered by the TUPE Regulations 2006, you are required to inform or consult appropriate representatives of affected employees. Failing to do so could be costly as it may result in each affected employee being awarded a protective award of up to 13 weeks' pay.
Appropriate representatives under the Regulations are trade union representatives or elected employee representatives. If your organisation is a micro-business (with fewer than 10 employees) you may inform and consult directly with affected employees if there are no employee representatives.
You will need to provide certain information about the transfer to appropriate representatives in sufficient time to allow your organisation to consult the representatives. The obligation to consult the appropriate representatives arises only if the employer (whether the transferor or transferee) of an affected employee envisages that it will, in connection with the transfer, be taking measures in relation to that employee.
Ellie Gelder, employment law editor
In this week's podcast, we discuss the practicalities of informing and consulting with transferring employees on a TUPE transfer.
Updated to include information on Federatie Nederlandse Vakereniging and others v Smallsteps BV, in which the ECJ held that a "pre-pack" administration may not prevent employees from having TUPE rights.
Practical guidance on dismissals in the context of a TUPE transfer, including who has liability for dismissals; economic, technical and organisational reasons for dismissal; and information and consultation.
In DLA Piper's latest case report, the Employment Appeal Tribunal (EAT) held that employment tribunals have no jurisdiction to entertain freestanding claims by transferred employees against the transferee for its failure to provide the transferor with information about the measures that it envisages it will take in relation to the transferring employees.
Use this TUPE workflow to carry out an election of employee representatives for information and consultation purposes in accordance with the requirements of the TUPE Regulations 2006, where there is no independent trade union recognised in respect of the affected employees.
The law on informing and consulting prior to TUPE transfers, including the obligation to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006, informing and consulting appropriate representatives and the exception for micro-businesses, and pre-transfer collective redundancy consultation.
A model letter to start consultation with employee representatives on measures in relation to affected employees.
A model policy to set out the procedure for the election of employee representatives for informing and consulting on a TUPE transfer. The policy covers: timescales for consultation; nomination of employee representatives; election of employee representatives; and the role of elected representatives.
A model letter to inform employee representatives that a TUPE transfer is to take place.
HR and legal information and guidance relating to collective employee relations and TUPE transfers.