The extent of employers’ obligations to inform and consult employees in a TUPE situation was considered in a recent Court of Appeal case of Royal Mail v Communication Workers Union (CWU) arising from the sale of post offices to WH Smith. The specific obligation on transferor employers examined in the case was the obligation to provide information to employee representatives on the legal, social and economic implications of the transfer and, in particular, whether the matters communicated must be accurate or not. CWU argued that if an employer made a mistake about the implications of the transfer, and therefore provided incorrect information, it followed that the employer would be in breach of its obligations under TUPE.

Royal Mail had a genuine belief that TUPE did not apply to the sale, because the employees would either be redeployed or would take voluntary redundancy before the transfer took place. The information provided to the employee representatives about the legal implications of the transfer was therefore based on an assumption that there would be TUPE transfer. However as there was, in fact, a TUPE transfer, the information provided was wrong.

CWU argued that because Royal Mail had wrongly informed employees about the legal implications of the transfer, they should be liable for failing to inform and consult as required by the TUPE regulations: they argued that the information provided by the transferring must be accurate.

That argument was not successful. The Court of Appeal found that where employers make a genuine mistake which results in the provision of incorrect information to employees, they will not automatically be in breach of the Regulations.

However, the Court of Appeal made clear that there is an obligation on employers to consider the legal implications of a situation to which TUPE might apply and the taking of legal advice would be “highly material” to helping show that any mistaken view was genuine.