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Informing and consulting prior to TUPE transfers

Updating authors: Patrick Brodie and Kelly Thomson, consultant: John McMullen


  • The obligation to inform and consult prior to a transfer arises under reg.13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246). (See The obligation to inform)
  • However, while there is always an obligation to inform, the obligation to consult arises only if either the transferor or the transferee anticipates taking measures in relation to affected employees as a consequence of the transfer. (See The obligation to consult)
  • Any consultations must be conducted with a view to seeking agreement to those measures. However, unlike in the case of collective redundancy consultations, there is no specified minimum period over which consultations must be conducted prior to the transfer taking place. (See The obligation to consult)
  • As with redundancy consultations, employers must consult union representatives or elected employee representatives. (See Appropriate representatives)
  • In relation to transfers that take place on or after 31 July 2014, micro-businesses (those businesses with fewer than 10 employees) may inform and consult directly with employees where there are no appropriate representatives, and the employer has not invited any of the affected employees to elect employee representatives. (See Micro-businesses' duty to inform and consult where no appropriate representatives)
  • Failure to inform or consult properly will generate liability for a protective award of up to 13 weeks' pay for each affected employee. (See Failure to inform and consult in relation to a transfer)
  • As a result of amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 that came into force on 31 January 2014, a transferee that is proposing 20 or more redundancies within 90 days or less may choose to carry out pre-transfer collective redundancy consultation with representatives of transferring employees provided, among other things, that the transferor agrees to it. Such consultation may count for the purposes of complying with collective redundancy consultation obligations even though the transferee is not the employer of the transferring employees prior to the transfer. (See Pre-transfer consultation and collective redundancies)
  • Following a transfer, relevant aspects of collective agreements will remain in force in respect of transferring employees' contracts of employment. (See Collective bargaining)

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