Royal Mail Group Limited v Communication Workers Union concerned the transfer of post offices from Royal Mail to WH Smith. Whilst Royal Mail recognised that this involved a transfer of an undertaking it believed that the transfer would not operate to transfer the contracts of employment of the employees working in the post offices because of its policy that staff would either be redeployed within the Royal Mail group or offered voluntary redundancy. It therefore did not believe that it was under any obligation to inform and consult and therefore carried out no TUPE consultation with the CWU in respect of the transfer of the post offices to WH Smith. Whilst no claims were brought by the employees, the CWU claimed that there had been a failure to inform and consult under regulation 13 in relation to the TUPE transfer.
The EAT found that Royal Mail was mistaken in its view that TUPE did not apply to transfer at least some of the employees to WH Smith but that there was no actionable failure to consult. It stated that the purpose of regulation 13 is to enable employee representatives to understand, and, if necessary, take issue with, the employer's perception of the situation and the steps it is proposing to take. Regulation 13 does not require an employer to warrant the accuracy of the information provided to employee representatives. Here, where Royal Mail acted on the basis of a genuinely mistaken belief of the legal situation, the EAT held that there was no failure to inform and consult. In coming to this decision, the EAT placed considerable importance on the fact that the Royal Mail had been acting on legal advice.
This is a helpful decision which gives comfort to employers that, if they are following legal advice as to the nature of the transaction for TUPE purposes, they should be protected from claims for failure to consult if it turns out that that legal advice is flawed. The EAT did, however, note that it may not be a defence for an employer to say that it did not inform and consult because it did not realise that there was a transfer at all or that he genuinely believed there was not - in these circumstances an objective view may be required.