In UCATT v AMICUS the Employment Appeal Tribunal (EAT) held that a transferee employer was not obliged to consult with the employee’s representatives after a Tupe transfer had occurred.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (Tupe) apply on relevant business transfer in the UK. Amongst other things, Tupe obliges employers to provide information to employees representative “long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives”. In some instances employers are also required to consult with the employee’s representatives. Tupe is derived from the Acquired Rights Directive (ARD).
The main issue in this case was whether the transferee employer’s consultation obligation continued after a Tupe transfer. The employee representatives argued that the matter should be referred to the European Court of Justice (ECJ) for clarification. The EAT held that there was no obligation for the transferee to consult after the Tupe transfer. The EAT stated that under Tupe and the ARD the “transfer date is the cut off date for consultation”. In coming to its conclusion the EAT also relied on Mummery J’s judgement in the case of South Durham Health Authority.
The EAT refused to refer the case to the ECJ because it was satisfied that the position was sufficiently clear.