The Transfer of Undertakings (Protection of Employment) Regulations 2006 (Tupe) impose obligations on both the transferor and transferee to consult over the likely implications of transfer. 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.