TUPE - consultation and information rights

This brief on the TUPE regulations deals with information and consultation rights and the rights of representatives.

Information and consultation

Who must be consulted?

These requirements apply in respect of any employees who may be affected by the transfer, whether employed by the new or previous employers. An employer is required to inform and, if appropriate, consult either representatives of an appropriate recognised trade union or elected representatives of the employees.

An employer who recognises an independent trade union for collective bargaining purposes is bound to inform/consult it for this purpose. However, an employer who does not recognise an independent trade union for a particular category of employees who may be affected may only inform/consult elected representatives. An employer may inform/consult a recognised trade union for one group of employees and elected representatives for another.

Where the employer chooses to inform/consult an independent recognised trade union, the employer must deal with a representative of that union who is authorised by the union to carry on collective bargaining with that employer; that may be the shop steward, or the district union official, or, if appropriate, a national or regional official.

Where the employer chooses to inform/consult elected representatives, who must be employees of the company, they must take steps to ensure representatives are elected in good time for information/consultation to be undertaken. Government advice is that there is no statutory requirement for permanent representation; it will be sufficient for an employer to arrange for elections as and when required.

Representatives need not be elected specifically for this purpose; an employer may inform/consult through an existing consultative body whose membership is elected, for example a staff council, provided that it is appropriate to inform/consult this body on this issue. It would not, for example, be appropriate to inform/consult a committee specifically established to consider the operation of a staff canteen about a transfer affecting, say, sales staff; but it may well be appropriate to inform/consult a committee which is regularly informed or consulted more generally about the company’s financial position and personnel matters.

The legislation does not specify how many representatives must be elected or the process by which they are to be chosen. An employment tribunal may wish to consider, in determining a claim that the employer has not informed or consulted in accordance with the requirements, whether the arrangements were such that the purpose of the legislation could not be met. An employer will therefore need to consider such matters as whether:

• the arrangements adequately cover all the categories of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups 
• the employees have sufficient time to nominate and consider candidates 
• the employees (including any who are absent from work for any reason) can freely choose who to vote for
• there is any normal company custom and practice for similar elections and, if so, whether there are good reasons for departing from it.

What must an employer do?

First, the employer of any employee who may be affected must tell their representatives:

• that the transfer is going to take place, approximately when, and why 
• the legal, economic and social implications of the transfer for the affected employees 
• whether the employer envisages taking any action (reorganisation for example) in connection with the transfer which will affect the employees, and if so, what action is envisaged 
• where the previous employer is required to give the information, he or she must disclose whether the prospective new employer envisages carrying out any action that will affect the employees, and if so, what.

The new employer must give the previous employer the necessary information so the previous employer is able to meet this requirement. The information must be provided long enough before the transfer to give adequate time for consultation.

Second, if action is envisaged which will affect the employees, the employer must consult the representatives of the employees affected about that action. The consultation must be undertaken with a view to seeking agreement. During these consultations the employer must consider and respond to any representations made by the representatives. If the employer rejects these representations they must state the reasons.

If there are special circumstances which make it not reasonably practicable for an employer to fulfill any of the information or consultation requirements, they must take such steps to meet the requirements as are reasonably practicable.

Rights of representatives

Representatives and candidates for election have certain rights and protections to enable them to carry out their function properly. The rights and protections of trade union members, including officials, are in some cases contained in separate provisions to those of elected representatives but are essentially the same as those of elected representatives described below.

The employer must allow access to the affected workforce and to such accommodation and facilities, e.g. use of a telephone, as is appropriate. What is "appropriate" will vary according to circumstances.

The dismissal of an elected representative will be automatically unfair if the reason, or the main reason, is related to the employee’s status or activities as a representative. An elected representative also has the right not to suffer any detriment short of dismissal on the grounds of their status or activities. Candidates for election enjoy the same protection. Where an employment tribunal finds that a dismissal was unfair, it may order the employer to reinstate or re-engage the employee or make an appropriate award of compensation.

Where an employment tribunal finds that a representative or a candidate for election has suffered detriment short of dismissal it may order that compensation be paid.

An elected representative also has a right to reasonable time off with pay during normal working hours to carry out representative duties. Representatives should be paid the appropriate hourly rate for the period of absence from work. This is arrived at by dividing the amount of a week’s pay by the number of normal working hours in the week. The method of calculation is similar to that used for computing redundancy.

Rep Action List

1. Applying the TUPE legislation is a very complicated exercise; any rep who becomes aware of a proposed transfer, should in the first instance contact their organising team for advice on whether there are potential TUPE implications

2. It is important to remember that consultation taken under TUPE is "undertaken with a view to seeking agreement". Agreement means consent from both parties and not one side unilaterally imposing its view

The briefs in this section provide guidance and some basic details of employment rights. They do not attempt to be comprehensive, and should not be taken as an authoritative statement of the law.