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When should TUPE information be provided?
In Cable Realisations v GMB the seller had an obligation under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") to inform appropriate representatives of its employees of the fact that a TUPE transfer was to take place and of the legal, economic and social consequences of the TUPE transfer. The seller had no consultation obligations under TUPE as neither the seller nor the buyer proposed to make any redundancies or changes to terms and conditions of employment of the transferring employees, (i.e. no ‘measures’ were contemplated).
Employers must provide the above information long enough before a TUPE transfer to enable 'consultation' to take place. Consultation in this context means voluntary consultation commenced by appropriate representatives once they have been provided with the requisite TUPE information but which the seller did not have to participate in.
In this case, the seller had provided the requisite TUPE information to the relevant trade union just under 3 weeks prior to the TUPE transfer. This might have been sufficient notice were it not for the fact that effectively 2 days after providing the information the site commenced its annual 10 day holiday closure when about 99% of the union’s members were on holiday and about 85% of them were away from home. The union sued for a protective award under TUPE on the basis that the seller had failed to provide the relevant information long enough before the TUPE transfer.
The Employment Appeal Tribunal (“EAT”) agreed with the trade union. The provision of information under TUPE is intended to facilitate a communication process between the appropriate representatives (employee representatives/trade union) and the employees, even if there is no legal obligation on the seller to consult. The union’s site representatives needed to be available to speak with management and their members. The seller must have known that this was not practicable during a shutdown.
The EAT made a protective award of 3 weeks pay per affected employee on the basis that the size of the award should reflect the justice of the case. Some TUPE information had been provided and there was no legal obligation on the seller to consult. In this case, the size of the award was neither too high nor too low: "like baby bear’s porridge, it was just right".
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