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- Firstly, there is a duty to give certain specified information about the proposed transfer to the "appropriate representatives" of the affected employees (the Information Duty).
- Secondly, if the employer proposes measures in connection with the TUPE transfer there is a quite separate legal duty to consult with those appropriate representatives (the Consultation Duty)
TUPE does not specify a clear timetable for employers to comply with these duties it simply states that information under the Information Duty must be given,
"long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees,..."
Where an employer or transferee breaches its obligations to inform and/or consult, a tribunal may award up to 13 weeks' pay for each affected employee.
However, if this Regulation is breached the question of ‘how long is long enough’ is one that has troubled both employers and their legal advisers alike.
This issue has now been considered by the Employment Appeal Tribunal recently in the case of Cable Realisations Ltd v GMB Northern
The Facts
In Cable Realisations Ltd v GMB Northern, the seller's board agreed to sell its cable business on 28 June and notices informing the workforce of this decision were posted the next day. Meetings took place with the Union on 3 and 25 July.
On 15 August the seller received the purchaser's "measures letter" which confirmed it envisaged taking no measures in relation to transferring employees. On the same day the seller provided the Union with the information required to comply with the Information Duty. At a further meeting on 17 August it answered the Union's questions arising from that information.
The seller's annual two-week shutdown took place between 20 and 31 August 2007. About 99% of the Union's employees were on holiday and about 85% were away from home during that time. The transfer completed on 3 September.
The Tribunal Claim
The GMB bought a claim alleging Cable had failed to comply with its Regulation 13 obligations and the Tribunal agreed. In particular the Tribunal found that:-- Cable had breached Regulation 13 by failing to provide the Union with the relevant information required by Regulation 13(2) - which it had done on 15 August - long enough before the transfer took place on 3 September. Because of the factory shut down there had been insufficient time i.e. only 2 working days between the 2 dates.
- The Tribunal awarded 3 weeks wages as damages for each of the GMB’s employee’s - suggesting the maximum 13 week award was for a failure both to inform and consult (not just inform in time as in this case) and therefore not appropriate in this case.
The Appeal
Cable appealed the liability finding and the GMB appealed against the amounts awarded.The EAT dismissed Cable’s appeal on the basis that:-
- Even though compulsory consultation was not triggered here, the provision of information required by Regulation 13(2) was to assist in voluntary consultation prior to the transfer. Therefore consultation should take place while the proposals were still at a formative stage, and allow adequate time for the representatives to respond to the information provided and also adequate time for the company to then consider the responses.
- In this case to fully engage in meaningful consultation, GMB needed to be able to speak to their members and this was not possible during the factory fortnight shutdown.
Conclusion
- This case emphasises the importance of parties informing representatives promptly so as to allow for the possibility of meaningful consultations to take place. It makes plain however that a maximum award is only likely to be granted in cases where there had been a complete failure to inform and consult.
- Longer time should be allowed especially if, for any period during that time, the undertaking will be closed or significant numbers of affected employees will be absent from the workplace.
- Meaningful consultation requires sufficient time for responses to be given and considered
