In UCATT v Amicus and others, the EAT held that neither the Acquired Rights Directive nor TUPE obliges a transferee employer to consult, after the transfer, about measures it envisages taking in respect of transferred employees.
In October 2006, Glasgow City Council ("GCC") transferred its Building Services Division to LLP, a newly incorporated company. Two thousand employees were transferred.
In due course, UCATT issued an employment tribunal claim alleging LLP had failed to consult with it in relation to measures it envisaged taking in relation to the transferred employees.
Under Regulation 13 of TUPE, both the outgoing employer (transferor) and new employer (transferee) have a duty to inform and consult the representatives of their respective employees about the transfer and any measures that it is envisaged may be taken. The term "measures" has a very wide scope, and covers any "action, step or arrangement" taken in connection with the transfer. Regulation 13(2) provides that the representatives must be informed of the transfer and any measures “long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees”. There are no other prescribed timing requirements for this consultation.
It was common ground between the parties to the case that both the Directive and TUPE provided for the giving of the specified information by the transferor employer to all those employed by it pre-transfer (including but not restricted to the group of employees liable to be transferred) and by the transferee employer to all those employed by it pre-transfer.
Similarly, it was not disputed that both the Directive and TUPE provide for each employer to be under an obligation to consult, before the transfer, with their own employees regarding any measures that either of them envisage taking in connection with the transfer. It was not suggested that either employer had an obligation to consult the employees of the other.
Where the parties differed was on the issue of whether, after the date that the transferors’ employees have been transferred, the transferee employer has a further duty to consult with those employees regarding any measures which it envisages taking in connection with the transfer that might affect that new part of its workforce.
In rejecting the Union's case, the Judge found that the position under the Directive and TUPE was clear. Her key findings were:
- The transfer date is the cut off date for consultation as between the transferee and the transferred employees
- Any other interpretation would be "wholly burdensome" to transferee employers and would potentially be unworkable as it would be entirely open-ended and the employer would never be free of the obligation to consult whenever they envisaged measures, however trivial, that could be interpreted as being in connection with the transfer even if the transfer had taken place years before.