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Can transferring employees bring a TUPE consultation claim against the transferee?

No, according to the EAT in Allen v Morrisons Facilities Services Ltd.

Background

Regulation 13 of TUPE requires both transferors and transferees to inform and (if appropriate) consult about a TUPE transfer with representatives of their affected employees. Failure to do so risks a protective award of up to 13 weeks’ uncapped pay per affected employee.

The transferor must provide the representatives with information on any measures the transferee envisages taking. To allow this to happen, the transferee is under a specific obligation before the transfer takes place to provide all relevant information to the transferor on any planned changes.

Where a TUPE consultation claim is raised against a transferor, notice can be given to join the transferee to the tribunal proceedings. Compensation can be awarded against the transferee where the transferor is found to be in breach and the transferor can show that this was because it did not have the required information from the transferee.

EAT decision

In Allen v Morrisons Facilities Services Ltd, at the time of the alleged failure to inform and consult, the affected employees were all employed by the transferor. After their claims against the transferor settled, they tried to bring claims against the transferee directly.

The EAT dismissed the claims, deciding that a complaint that there has been a failure to inform and consult under TUPE can only be brought by (the appropriate representative of) an employee against his own employer. The transferor’s employees could not bring stand-alone claims against the transferee.

The EAT’s decision does not raise a new point of law. However, it is a reminder of the narrow circumstances in which a transferee will be solely liable for a failure to inform and consult. Sellers negotiating transfer agreements should include a requirement on the buyer to provide full and timely information on any measures it proposes to take; and an indemnity for costs in the event that it fails to do so.

The post Can transferring employees bring a TUPE consultation claim against the transferee? appeared first on Brodies Blog.

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