Update. The new TUPE rules coming into force progressively in 2014 will make this unambiguous – this post is now out of date.
It’s been really interesting talking to people about my blog posts around TUPE and redundancy. A number of serious legal practitioners assert that in a TUPE scenario the current employer cannot initiate consultation regarding post-transfer redundancies since they have no intention of implementing them.
It took a while to track down where the “current employer’s intention” came into it, and as far as I can see this comes from the idea that consultation is a conversation with a view to reaching/seeking agreement (1) — and thus if the person initiating the conversation has no intention of implementing the project, then there is no such intent and so consultation has not been started.
Any consultation process, regardless of TUPE, can be challenged if there is no intention to try to reach agreement (and thus consultation is a sham). It is possible for the current employer and future employer in a TUPE scenario to sit down jointly with the employee representatives and start consultation with a view to reaching agreement on post-transfer redundancies.
There is a view that the TUPE regulations specify that the consultees must be employees of the person consulting them. (2) The whole of TUPE is constructed around the legal fiction that anything done by the current employer is deemed to have been done by the future employer. (3) So at the point of transfer earlier consultations, if properly conducted will be deemed to have been done by the future employer.
If the transfer is ‘hostile’ (as changes of contractor can often be), the situation is made more difficult for the future employer because TUPE does not allow them to insist that the current employer allows early access to the transferring staff.
If the future employer’s statement of measures is simply handed to representatives by the outgoing employer (current employer), the act of distributing the paperwork does not initiate ‘consultation’, since there is no dialogue and no attempt to reach agreement.
But, provided the ’statement of measures’ is properly worded, surely the future employer can say that they have started a process of consultation with people who are not yet their staff, as they are engaging with them (albeit at second-hand) “with a view to reaching/seeking agreement”.
If the current employer is being deliberately obstructive to the future employer and will not pass on contact details for the future employer so that a direct dialogue can be established, then subtler strategies to open the lines of communication with transferring staff will have to be adopted — but they are available.
The world of law, where we argue the equivalent of how many angels can we fit on a pin, and the world of men and women, where we are much more concerned with who is going to get hurt by the pin, do not naturally coincide.
Surely it can never be a wrong thing in employment law (with the exception of announcements governed by the Official Secrets Act, or Stock Exchange rules) for parties to sit down as early as possible to discuss what is being planned and see what can be agreed. The intention of the Business Transfers Directive 2001 (4) was always to encourage consultation and dialogue, not to prevent it. It would be an unusual employment tribunal that took the view that a real dialogue could not be initiated at the earliest possible stage provided the intention is there.
(1) The TUPE reg 13(6) wording is that consultation is with employee reps “with a view to seeking their agreement”. The collective redundancy wording [TULR(Consol)A 1992, s 188, is “with a view to reaching agreement with the appropriate representatives”.
(2) TUPE reg 13(6) provides that the employer of an affected employee who envisages he will take measures shall consult reps with a view to seeking agreement to the intended measures.
Prior to the transfer, the transferring employees are NOT employees of the transferee. The transferor’s obligation is to pass on the transferee’s measures statement [TUPE reg 13(2)(d)].
(3) TUPE reg 4(2)(b) provides that any act or omission before the transfer is completed…..shall be deemed to have been an act or omission of or in relation to the transferee……….
(4) A consolidation of the 1977 Acquired Rights Directive and intervening amendments
Annabel Kaye is Managing Director of Irenicon Ltd a specialist employment law consultancy