The employer in LLDY Alexandria Ltd v Unite was a whisky company whose profits plummeted in 2011 when its second largest customer went elsewhere.  Later that year there was a dispute over pay.  Following numerous rejections of a 3% offer, the managing director told a union representative in April 2012 that the offer was fair and in line with the industry; that he was fed up and left with no option but to subcontract the work.

After further negotiations and a threat of industrial action, which was later withdrawn, finally on 22 June 2012 the employees were given a detailed letter telling them that spirit handling functions were being outsourced because of costs considerations and anticipated reductions in volume of work.  There was no mention of the industrial dispute in the letter.  Following a meeting with employee representatives on 4 July, the TUPE transfer took place on 9 July 2012.

The EAT decided that the tribunal was entitled to find that one reason for the transfer was the continuing dispute over pay and because this reason was not disclosed to employees in the letter of 22 June (or at the subsequent meeting), the information given to employees about the reasons for the transfer (as required by the legislation) was incomplete.

The tribunal was also entitled to find that information had not been provided sufficiently long before the transfer to allow consultation to take place.  There had been one meeting on the Wednesday afternoon of 4 July lasting 90 minutes, just 48 hours before the Friday shut down.  The transfer took place on the following Monday.  The tribunal found that there was no evidence as to why the transfer could not be postponed.

The case makes it clear that an employer cannot be selective about the reasons it discloses for a transfer.  Here the gloss placed on the reasons for the transfer in the information given to employees was cast into doubt by direct evidence from the union official about what had been said to him in April.

The decision on the timing point seems harsh.  It was accepted that there was not in fact any duty to consult, because no "measures" were proposed by the employer, but the tribunal nevertheless found that the information had not been provided sufficiently far in advance of the transfer.  In addition, the tribunal appears to have counted time from the 4 July meeting, even though detailed information was initially given in the 22 June letter.