Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly called TUPE) the departing and the incoming employers have a duty to inform and consult their respective employee representatives before the transfer date.
Businesses that employ fewer than ten employees can choose to consult directly with the workforce instead of via representatives, but only if there is no recognised trade union where you work.
Appropriate employee representatives are representatives of a trade union recognised for collective bargaining purposes or, if there are no such representatives, employees appointed or elected by the affected employees. The responsibility is on the employer to arrange elections for representatives where necessary.
If the employees fail to elect representatives, the employers must give the required information to each employee affected by the transfer, including:
- the fact that a relevant transfer is to take place;
- when that transfer is to take place;
- the reasons for the transfer;
- the legal, economic and social implications of the transfer for affected members;
- any measures that the new employers expect to take in relation to the employees who will be transferred;
- the number of agency workers;
- the areas of the business in which those agency workers are working; and
- the type of work those agency workers are carrying out.
This information should be given to the representatives long enough before the transfer to allow reasonable time for consultation on any proposed measures. The purpose of the advance information is to forewarn workers as to what's coming and to enable discussions about the implications for the workforce to take place with representatives.
Failure to inform and/or consult could result in a tribunal award of compensation to each affected employee of up to 13 weeks' pay, depending on the seriousness of the failure.