The obligation to pass information on to employee representatives under TUPE
Written by Petra Venton (Feb 2010)
In the recent case of Cable Realisations v GMB, the Employment Appeal Tribunal (EAT) was asked to consider what an employer is required to do prior to a TUPE transfer.
Under TUPE, the transferor and transferee employers have an obligation to provide certain information to the employee representatives and, if any changes or measures are proposed, to consult with the employee representatives. The information required is:
• the fact that the transfer is to take place, the date or proposed date and the reason for it;
• the legal, social and economic implications of the transfer for the employees;
• the measures envisaged or if none are envisaged confirmation of that.
In Cable Realisations v GMB, no measures were proposed. The question the EAT had to consider was when the employer had to provide information about the transfer to the employee representatives. Very often employers want to hold back information until the last minute, particularly if the deal is commercially sensitive. However, the EAT held that the information must be provided long enough before the transfer to allow consultation to take place (even though there is no obligation to consult).
There is no set time period and it will depend very much on the facts in each case. However, what is clear is that if the information is withheld until the last minute, the employer will be in breach of TUPE. The consequence of such a breach is an award of up to 13 weeks pay per affected employee. However in this case, the award made was only 3 weeks pay per employee.
Petra Venton
Cripps Harries Hall LLP
February 2010