Which employer is responsible for notifying the Secretary of State of collective redundancies if redundancy consultation takes place before a TUPE transfer?

The transferee is responsible for submitting the HR1 form to notify the Secretary of State of collective redundancies in a situation where it carries out pre-transfer collective redundancy consultation in a TUPE situation.

An employer has a duty to notify the Secretary of State for Business, Energy and Industrial Strategy of proposed redundancies where it is carrying out a redundancy exercise to which the collective redundancy consultation duty applies. The employer must submit the notification, using form HR1, before giving notice to terminate any of the relevant employees' contracts, and:

  • at least 45 days before the first of the dismissals takes place if it proposes to dismiss 100 or more employees; or
  • at least 30 days before the first of the dismissals if it proposes to dismiss between 20 and 99 employees.

Under s.198A of the Trade Union and Labour Relations (Consolidation) Act 1992, where the transferee proposes to make redundancies after a TUPE transfer, to avoid delaying the redundancy exercise the transferee can elect to begin the consultation before the transfer, even though it is not yet the employer of the transferring employees. In these circumstances, for the purpose of collective redundancy consultation and the duty to notify the Secretary of State, the transferee is treated as if it is already the employer of the transferring employees. Therefore, it is the transferee, not the transferor, that has the duty to notify the Secretary of State of the proposed redundancies.