TUPE Information and Consultation Duties (UK)  

4

1. Legal Framework

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) impose mandatory information and consultation obligations on both:

• Transferor (old employer)
• Transferee (new employer)

These duties are primarily governed by Regulation 13 TUPE 2006.

They arise when:

• A business transfer occurs, or
• A service provision change (outsourcing, insourcing, or retendering)

2. Who Must Be Informed and Consulted?

Employers must inform and, where appropriate, consult:

• Recognised trade unions, or
• Employee representatives (elected or existing)

If no representatives exist:

• The employer must arrange elections for employee representatives.

3. Information Duties (Regulation 13(2))

The employer must provide the following information long enough before the transfer:

(a) Fact of the Transfer

• That the transfer is happening
• The date or proposed date

(b) Reasons for the Transfer

• Commercial rationale (e.g., outsourcing, restructuring)

(c) Legal, Economic, and Social Implications

• Impact on employment terms
• Continuity of service
• Changes in working conditions

(d) Measures Envisaged

• Any changes planned by either employer
• If no measures → must explicitly state this

(e) Agency Workers (post-2014 amendment)

• Number of agency workers
• Type of work
• Work location

4. Consultation Duties (Regulation 13(6))

Consultation is required only if “measures” are envisaged.

Meaning of “Measures”

Broadly interpreted, includes:

• Redundancies
• Relocation
• Changes to roles, pay, or structure

Nature of Consultation

• Must be with a view to reaching agreement
• Must be:
  • Genuine
  • Timely
  • Meaningful

Consultation is not a mere formality—it must involve:

• Dialogue
• Consideration of alternatives
• Response to employee concerns

5. Timing Requirements

• Must occur “long enough before the transfer”
• No fixed statutory minimum period, but:
  • Must allow effective consultation
  • Must precede any decisions on measures

Late consultation = breach even if information is provided.

6. Liability and Apportionment

• Both transferor and transferee can be liable
• Liability may be:
  • Joint and several, or
  • Allocated contractually between parties

Compensation

• Up to 13 weeks’ gross pay per affected employee
• Known as a “protective award”

7. Key Case Laws

1. Cable Realisations Ltd v GMB [2010]

• Held:
  Consultation must be meaningful and not a sham.
• Importance: Reinforced that superficial consultation breaches TUPE.

2. UK Coal Mining Ltd v National Union of Mineworkers [2008]

• Held:
  Consultation must begin at a formative stage, not after decisions are made.
• Importance: Timing is critical—late consultation invalid.

3. Susie Radin Ltd v GMB [2004]

• Held:
  Failure to inform/consult can justify maximum protective award (13 weeks).
• Importance: Established seriousness of non-compliance.

4. Royal Mail Ltd v Communication Workers Union [2009]

• Held:
  Employers must provide sufficient detail for meaningful consultation.
• Importance: Vague or incomplete information is insufficient.

5. Amicus v Dynamex Friction Ltd [2008]

• Held:
  Transferee must communicate planned measures to transferor, who then informs employees.
• Importance: Highlights coordination duty between employers.

6. Todd v Strain [2011]

• Held:
  Even where business collapse is imminent, employers must still attempt consultation.
• Importance: Financial difficulty is not a complete excuse.

7. Hynd v Armstrong [2007]

• Held:
  Failure to consult properly leads to liability even if outcome unchanged.
• Importance: Process matters, not just outcome.

8. Special Situations

(a) Insolvency Context

• Duties may be relaxed in certain insolvency scenarios
• But not eliminated entirely

(b) Micro-Businesses (Post-2014 Reform)

• Businesses with <10 employees may:
  • Consult directly with employees (if no representatives)

9. Practical Compliance Steps

Employers should:

1. Identify affected employees early
2. Elect representatives (if needed)
3. Provide detailed written information
4. Engage in genuine consultation meetings
5. Document all steps taken
6. Coordinate between transferor and transferee

10. Key Risks of Non-Compliance

• Financial liability (protective awards)
• Reputational damage
• Employee relations breakdown
• Litigation and union disputes

11. Conclusion

TUPE information and consultation duties are central to employee protection during business transfers. Courts emphasize:

• Transparency (clear information)
• Timing (early engagement)
• Substance (genuine consultation)

Failure to comply is treated seriously, with tribunals willing to impose maximum penalties where employers neglect these obligations.