- Employees should be consulted if they are affected by any 'measures' envisaged by the transferor or transferee in connection with the transfer.
- TUPE does not require consultation to take place with the employees affected themselves but concerns collective consultation obligations with appropriate employee representatives.
- Organisations employing 10 or fewer staff, and which do not recognise a trade union, are exempt from the requirements to appoint appropriate employee representatives, where there are none already in place. These small employers may satisfy consultation requirements by consulting with the employees directly.
- The transferor and transferee are jointly and severally liable for informing and consulting with employee representatives and for any award of compensation arising as a result of failure.
- In assessing the appropriate award, a tribunal will consider the extent of failure, not the loss to affected employees.
10 November 2023
The government has announced plans to remove the need to consult with representatives in small businesses (fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (of fewer than 10 employees), and permit them to consult with their employees directly if there are no existing worker representatives in place. These changes will apply will apply to TUPE transfers on or after 1 July 2024, subject to the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 gaining parliamentary approval.