TUPE election for pre-transfer consultation

Our TUPE election for pre-transfer consultation can be issued by a transferee to a transferor in a TUPE situation where mass redundancies are proposed post-transfer in order to start the collective redundancy consultation process early. However, the transferor has to agree to it.

TULCRA

Section 198A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) allows a transferee employer in a TUPE situation who is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less, to elect to consult, or to start to consult, about the proposed dismissals with the appropriate representatives of affected transferring employees before the TUPE transfer takes place. This will be of relevance where the employees who work for the transferor and who are to be transferred to the transferee’s employment under the TUPE transfer include one or more employees who may be affected by the proposed redundancy dismissals or by measures taken in connection with the proposed dismissals. What this means in practice is that early pre-transfer consultation undertaken by a transferee can count towards his collective redundancy consultation obligations, where post-transfer redundancies are anticipated. As a result, redundancies can be made more quickly post-transfer where these provisions are used.

Written election

Pre-transfer collective consultation is, however, only possible where the transferee has given written notice of their election to consult to the transferor and the transferor agrees to it. This is where our TUPE Election for Pre-Transfer Consultation comes in. It’s essentially a letter from the transferee to the transferor giving that written election notice. It then asks the transferor to confirm they agree to the election. If the transferor does agree, they may then provide information or other assistance to the transferee to help them meet their TULRCA collective consultation obligations. So, our letter goes on to ask the transferor to confirm that they will indeed provide the transferee with such information or other assistance. The transferee can change his mind about pre-transfer collective consultation as he has the power, by written notice to the transferor, to cancel his election at any time and if this happens, any consultation carried out so far has no effect and the relevant parties (the appropriate representatives, Secretary of State and the employees) who were notified of the election or the proposed dismissals must be notified of the cancellation as soon as reasonably practicable. Where an election has been cancelled, the transferee is not permitted to make another election and will then have to wait until after the TUPE transfer to start any collective consultation process. Where pre-transfer consultation is carried out, TULRCA applies from the time of the election (and continues to apply after the TUPE transfer) as if the transferee was already the transferring employees’ employer and as if any affected transferring employees were already employed at the transferee’s business establishment.

Warning

These provisions only relate to an employer’s collective consultation obligations under TULRCA - they say nothing about individual consultation on redundancy which will still be required to make a redundancy dismissal fair.