In the recent case of UCATT v Amicus, TGWU & Glasgow City Council the EAT looked at the extent of the duty to consult with affected employees about a TUPE transfer.

TUPE Reg. 13 requires ‘the employer’ (which could be either the transferor or the transferee) to inform ‘affected employees’ of certain matters including any ‘measures’ envisaged in relation to those employees. Such information must be given ‘long enough before a relevant transfer’ to enable consultation to take place. In most cases, the affected employees will all be employees of the transferor. However, there is an obligation on the transferee (set out in Reg. 13(4)) to give the transferor such information (regarding post-transfer employment), as it will enable the transferor to carry out its duty to inform.

In this case, the claimant employees argued that there must also be a duty on the transferee to consult. Furthermore, that duty should not be restricted to a pre-transfer timetable, in contrast to the transferor’s duty, which clearly was.

The employment tribunal, and now the EAT, disagree.

Reg. 13 only applies pre-transfer. At that time the transferee is required to supply information to the transferor, but is only required to consult with any of its own employees who may be ‘affected’ by the transfer, not with the transferor’s employees, even though they will become employees of the transferee as a result of the transfer. Nor does it require the transferee to consult on post-transfer measures once the transfer has taken place. This is simply because TUPE does not contain any such requirement.

Points to note –

  • The judgment in this case fills a gap in the wording of TUPE Reg.13. It confirms that the transferee has only a limited obligation to employees transferring from the transferor - to provide pre-transfer information to the transferor.
  • The EAT’s reasoning was that there are other statutory requirements that deal with employee consultation, particularly where redundancies are contemplated, and these would come into play once the transfer had taken effect.
  • The EAT also argued that it was right that TUPE should not contain any provision for post-transfer consultation between the transferee and its new (recently transferred from the transferor) employees. The central provision of TUPE is that employees should transfer on the same terms and conditions. So, post-transfer, it was not possible to negotiate any change in contract terms as they would automatically be void as being ‘transfer-related’. In fact, it may be possible to introduce ‘measures’ which are not changes in contract terms but great care needs to be taken before any attempt is made to harmonise employee contract terms post-transfer.