The Employment Appeal Tribunal (EAT) has recently made an important decision in relation to the Transfer of Undertakings Regulations 2006 (TUPE).

The EAT has confirmed that even when there are no proposed changes or measures to be taken in relation to the transferring of employees, time constraints will still be placed on the duty to inform and consult to ensure that proper consultation can take place.

Information should be provided to employee representatives early enough to allow for meaningful consultation.  This applies even if the consultation is voluntary. 

In this particular case, Cable Realisations Limited -v- TMB Northern, the information was given on 15 August and although a transfer didn’t take place until 3 September, this was insufficient time for meaningful consultation to take place.  This was mainly due to the fact that the information was only given 2 days before the factory was shut down and 99% of the union members went on holiday.  If the information had been supplied earlier, the date of transfer could have been deferred to allow for a short period of consultation.  In this case there had been a breach of the TUPE regulations and 3 weeks pay was awarded per each affected employee.  

Employers dealing with a TUPE situation should try to make sure that information is provided at the earliest possible stage although the tribunal is unlikely to award the maximum compensation of 13 weeks pay per employee unless there has been a complete failure to inform and consult all together. 

Disclaimer:  The information and opinions expressed in all Lee & Priestley LLP articles contained in our briefings and on our website - http://www.leepriestley.com are not necessarily comprehensive and should not be relied upon without taking in-depth professional advice.

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