Redundancy and TUPE protective awards have been made against the employer in two Employment Tribunal decisions: Unison v London Borough of Barnet and NSL Ltd and Unison v Capita following a failure to inform and consult with the trade union. It should be noted that these are Tribunal and not EAT decisions, but they are timely as they deal with the new requirement to disclose “suitable agency information” during TUPE and collective redundancy consultation processes.
An institution carrying out collective redundancy consultation or pre-transfer consultation must first provide the appropriate employee representatives with certain information in writing. Specifically, institutions are now required to disclose the number of agency workers working for the institution, the parts of the undertaking in which they are working and the type of work they are carrying out. These provision relate to the institution's use of agency workers throughout its business and not just in the part being transferred.
An institution which fails to comply with its obligations in this regard may find itself liable for a protective award, which may result in a Tribunal ordering it to pay remuneration to affected employees for a "protected period" of up to 90 days' pay (in respect of redundancy consultation) and up to 13 weeks' pay (in respect of TUPE consultation).
In the Barnet case, the Tribunal awarded a 60 day award in relation to the worst failure and cited a number of reasons for so doing, including that:
- the information was relatively easy to produce;
- the union requested the information; and
- the information was central to the consultation process as there was a commitment to ensure that “agency workers are displaced wherever practical to “save” an employee”.
In the Capita case, the 36 UNISON members were each awarded a 45 day award when Capita failed, according to the Employment Tribunal, to provide UNISON with the compulsory agency worker information it requested to protect workers as part of the consultation over redundancies.
Institutions not aware of the need to disclose agency information should ensure that their systems and processes are capable of providing all three elements of the information accurately and without undue delay.