TUPE transfers - information and consultation
In Royal Mail Group Ltd v Communication Workers Union [2009] EWCA Civ 1045 CA, the Court of Appeal held that an employer must inform representatives of employees who may be affected by a TUPE transfer of its considered and genuine view as to the legal implications of the proposed transfer. However, reg.13(2)(b) of the TUPE Regulations 2006 does not impose strict liability on the employer as to the accuracy of that information. Therefore the employer will not be in breach if the information that it gives reflects a genuine but mistaken belief as to the legal implications.
In Amicus and another v City Building (Glasgow) LLP and others [2009] IRLR 253 EAT, the EAT held that, after a transfer, the transferee employer is not obliged to consult with representatives of the transferred employees in respect of the measures that it proposes to take.
Twenty-eight years after its birth, TUPE still raises thorny questions. Its complexity is evidenced by the number of groundbreaking tribunal cases which have come to the fore recently, many of which could have far-reaching ramifications at a time of economic instability, writes Lesley Murphy.
In Holis Metal Industries Ltd v GMB and another [2008] IRLR 187, the EAT refused to strike out a claim alleging breach of consultation duties arising pursuant to the TUPE Regulations 2006.
This article looks at some of the important judgments in the area of the transfer of undertakings over the past year.
In Sweetin v Coral Racing, the EAT holds that awards of compensation for a failure to inform and consult about staff transfers under the Transfer of Undertakings (Protection of Employment) Regulations should be penal and not compensatory.
Sophy Robinson and Karen Fletcher of Addleshaw Goddard outline the latest legal rulings and explain what you need to know to avoid tribunals.
In Howard v (1) Millrise Ltd and another, the EAT holds that the correct interpretation of reg.10 (8A) of TUPE is that, if there is no trade union and no elected employee representatives, the employer is under a duty to inform and consult employees affected by the transfer of the undertaking.
In Alamo Group (Europe) Ltd v (1) Tucker (2) Twose of Tiverton Ltd, the EAT holds that where a transferor fails to comply with its duty to inform and consult upon a relevant transfer, liability for that failure passes to the transferee under reg. 5 of the TUPE Regulations.
In Institution of Professional Civil Servants and others v Secretary of State for Defence the High Court rejects a complaint by various trade unions that the Secretary of State had not Informed and consulted them about a proposed transfer of two dockyards to commercial management, as required by s.1 of the Dockyard Services Act 1986.
Employment law cases: HR and legal information and guidance relating to TUPE transfers - information and consultation.