The EAT has held that neither TUPE nor the Acquired Rights Directive (ARD) requires a transferee to consult, after the transfer, about measurers it envisages taking in respect of transferring employees in the case of UCATT v Amicus EAT.
Regulation 13(6) TUPE provides that “An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures”
In reaching its decision the EAT appears to have relied in part on the fact that transferred employees are protected post-transfer because any changes to their terms and conditions will be void if they are transfer-related, and therefore to read the TUPE Regulations as requiring consultation would be meaningless. However, this ignores the fact that the transferee could intend to take measures post-transfer which (a) would not involve a variation to terms and conditions and/or (b) could seek to vary terms and conditions for an ETO reason which could be effective. In both cases, consultation would be meaningful.
Even if there is no TUPE consultation obligation, a transferee may still have an obligation to consult collectively post-transfer under other legislation, for example in relation to collective redundancy dismissals.
This case involved the transfer of the City of Glasgow’s Building Services Division to a building firm (LLP). The transfer took place on 6 October 2006 and 2,000 council employees transferred to LLP under TUPE 2006.
Amicus and TGWU, the recognised trade unions and the “appropriate representative” of affected employees, brought Tribunal claims that both the Council and LLP had failed to comply with the information and consultation provisions set out in Regulation 13.
At a Pre-Hearing Review, a tribunal considered whether Regulation 13(6) of TUPE 2006 might have placed the transferee employer, LLP, under a post-transfer obligation to consult representatives of the transferred employees. It decided this was not the case as the time-limit for bring a claim ran from the date of the transfer and required all consultation to take place in good time before the “change in the business”, which in the tribunal’s view was the “date of transfer”.
Amicus and the TGWU appealed to the EAT arguing that although the ARD and TUPE might restrict the transferor’s obligations it did not effect the transferee employer’s obligations in the same way.
The EAT held that the cut-off point for all consultation under the ARD and TUPE 2006 is the date of the transfer. It set out the following main reasons for this conclusion:
- The provision of information under the ARD is clearly forward looking to the date of transfer;
- Further, the provision of information and any consultation under the ARD must take place in good time before the “change in the business”. The EAT did not agree with the Tribunal that this would necessarily be the date of transfer but could also be the date where any pre-transfer changes envisaged by the transferor or transferee will take effect. It did conclude though that this date could be no later than the transfer date;
- Transferred employees are already protected post-transfer because any measures to be taken by the transferee, for example changes to terms and conditions which are transfer-related will be void.