The EAT has held that for the purposes of TUPE, "affected employees", whose representatives must be informed and consulted about the transfer, are those who will be or may be transferred, who have an internal job application pending at the time of the transfer and whose jobs may be put in jeopardy by the transfer (Unison v Somerset County Council).

The EAT rejected a challenge by Unison that other employees, who were not in scope to transfer, were also "affected employees" because a change to the recruitment policy negotiated between the parties would affect their job prospects in the future (by not giving them precedence over external candidates). The EAT held that this was too wide and onerous an obligation. Affected employees did not cover everyone in the workforce who might apply for a job at some point in the future.