Duty to Inform and Consult on TUPE Transfer

The EAT’s judgment in Cable Realisations Ltd v GMB Northern is a significant decision covering the duty to inform and consult on a TUPE transfer. It held that even where there are no measures envisaged in relation to the transferring of employees in connection with a transfer (and therefore no mandatory consultation is required), the duty to inform is still subject to timing constraints allowing meaningful consultation to take place. The purpose of providing information is to allow employee representatives to engage in a consultation process with the employer on an informed basis, even if that consultation is voluntary. The information must therefore be provided early enough to allow for this process.

In this case the necessary information was given on 15th August. Although the transfer did not take place until 3rd September this was not deemed to be sufficient time for meaningful (albeit voluntary) consultation. This was because the information was given only two days before the factory shutdown and 99 per cent of the union members went on holiday. The information could have been supplied earlier (on 13th August) and the date of the transfer could have been deferred to allow for a short period of consultation.

The EAT concluded that there had been a breach of the duty to inform and consult under Regulation 13. Applying the guidance set out in the Court of Appeal judgment in Susie Radin v GMB & others, it confirmed that an award of 3 week’s pay per affected employee reflected the justice of the case.

This case will be of interest to all employers dealing with TUPE. It emphasises the importance of always providing information at an early stage and shows that any award for a failure to inform and consult will depend on the circumstances of the case. A maximum award is unlikely to apply unless there has been a complete failure both to inform and consult.