The TUPE regulations impose a duty on both the transferor and transferee to provide information about the transfer. This information should be passed to representatives of their respective workforce before a transfer takes place. If any additional measures are contemplated, there is an additional obligation to consult with representatives. Also, there is a further duty on the transferor to provide information about the employees to the transferee before the transfer occurs.
Therefore, the appointment of appropriate representatives is often undertaken in a TUPE situation. Where a transferor has no recognised union, a transferor is nevertheless obliged to invite the affected employees to elect employee representatives for the purposes of TUPE. If they fail to do so, the transferor is required to inform and consult with all employees on an individual basis in relation to the transfer.
Both the transferor and transferee are required to inform the representatives of the fact that a transfer is to take place, the date or proposed date of the transfer and the reason for it together with the legal, social and economic implications of the transfer for any affected employees.
Consultation on any measures proposed in relation to the transfer requires a duty to consult with the appointed representatives or directly with the affected employees. Such information must be provided long enough before the transfer to enable meaningful consultation to take place.
The transferor is obliged to provide the transferee with details of the transfer of employees in relation to:
The above information must be correct at a specified date, not more than 28 days before the date it is notified to the transferee.
The notification must be given not less than 28 days before the transfer. If this is not possible then it must be given as soon as is reasonably practicable thereafter.
Employment Tribunal proceedings can be brought by both employees and transferees for failure to provide proper consultation and information.