TUPE imposes an obligation on a transferor to inform and consult representatives for its own “affected” employees. Previous case law has established that transferor employees may be “affected” even if they do not transfer, for example if some of the work they do has been transferred so their jobs change or are at risk.
The EAT has recently confirmed that this does not extend to the situation where the transfer has an indirect effect on the work available for the transferor’s non-transferring employees, for example because the transfer of a more profitable part of the business makes the remaining part less viable and ultimately it is closed.
Equally, the exclusion of that part from the transfer does not render the employees left behind “affected”, even if the transferee originally envisaged taking that part too then changed its mind. There can be no complaint of a breach of the obligations to inform and consult about a transfer which doesn’t actually take place. (I Lab Facilities v Metcalfe)